Dariyah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1192/2023

[2026] HKCFI 5752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1192 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Keith Lam:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 14 July 2023 (“Form 86”), the Applicant seeks leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) dated 5 July 2023 (“TCAB Decision”), which affirmed the decision of the Director of Immigration (“DOI”) dated 3 January 2023 (“DOI Decision”).

2.The Applicant requested for a hearing of this application, which was held on 14 September 2026. When asked she said she had nothing to add.

Background

3.The Applicant is a national of Indonesia. In gist, she fears that she will be killed by her ex-husband if she is refouled as he wanted to get back together with the Applicant but she refused. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink.[1] There is no need for me to repeat the same. Unless otherwise specified, the abbreviations and descriptions used in the TCAB Decision are adopted herein.

Discussion

4.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

5.In a judicial review, this court does not provide a further avenue of appeal. While I remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinising the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

6.An applicant is required to clearly and succinctly identify the grounds of judicial review relied upon in the Form 86 and the supporting affirmation: Ho Loy v Director of Environment Protection, HCAL 21/2015 (unrep.) 22.12.2016 at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

7.The Applicant stated the following grounds of judicial review in the supporting affirmation: -

(1)  “Adjudicator did not consider my claim. Adjudicator directly dismissed. He did not even take time or did not think about my life.” (“Ground 1”)

(2)  “I had some documents but all in my mother language. I submitted all but Adjudicator did not accept because he could not understand.” (“Ground 2”)

(3)  “I request him to give me some time to translate in English of my all documents and I too took some preparation but my officer had no time.” (“Ground 3”)

(4)  “Translator did not help me at all. If I did not understand he became angry.” (“Ground 4”)

(5)  “Interpreter asked me to not take long time for interview as he had another job.” (“Ground 5”)

(6)  “Please help me and safe my life.” (“Ground 6”)

8.I have scrutinised the TCAB Decision carefully and come to the view that none of the above Grounds can be established or considered as valid or effective public law grounds.

9.Most if not all of the grounds merely consist of generic, vague and/or unparticularised assertions without reference to any underlying facts or matters establishing why, how and where each of those complaints arise in relation to the TCAB Decision. General assertions without particulars are not effective grounds and cannot assist the Applicant: Re Haider Khalil [2021] HKCA 223 at §16.

10.Ground 1 is clearly not correct given that the TCAB Decision considered the Applicant’s evidence about the alleged threat to her life in detail, as discussed in §13 below.

11.Ground 2 to Ground 5 are bare assertions and are contrary to what was recorded in the DOI Decision and the TCAB Decision and must be rejected: -

(1)  It would appear from the DOI Decision that, in the Applicant’s initial application and at her interview with the Immigration Department, she had no difficulty in providing detailed information about her claim: see DOI Decision §6. In particular, the DOI Decision quoted or referred to various responses from the Applicant to the DOI’s questions at the screening interview: §§6.13, 6.14, 6.15, 6.16, 6.17, 6.19, 6.20, 26.

(2)  Despite the allegation that the Applicant had some documents in her mother language to submit to the Adjudicator which he refused to consider, no such documents are presented in her supporting affirmation in this application.

(3)  The Applicant attended the oral hearing before the TCAB without legal representation. There was however no indication of any difficulty in giving evidence and/or answering the questions raised by the TCAB. As recorded in the TCAB Decision, the Applicant was able to provide various additional information during the oral hearing before the TCAB, and there were various occasions at the hearing where the TCAB made inquiries of the Applicant and the Applicant’s responses were recorded: see TCAB Decision §§32, 36, 38, 40, 68.

12.Ground 6 self-evidently has no substance.

13.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds: §§23‑108. It is clear that the TCAB considered the evidence available thoroughly and in detail. In particular, the TCAB found that:

(1)  Despite that the ex-husband made the alleged threats on 2 occasions, he had no history of physically harming the Applicant, nor had he attempted to contact or locate the Applicant since those incidents. The TCAB concluded that the ex-husband was only doing so out of anger that the Applicant refused to get back together, but he did not really intend to seriously harm the Applicant: §§29-44. In fact, the TCAB recorded that the Applicant actually expressed agreement at the hearing that her ex-husband did not really intend to seriously harm her: §§32c-d.

(2)  There was no evidence that the ex-husband had any political or government background, or had any connection to the police or the state organs, such that this was just a private dispute: §§45-58.

(3)  The TCAB took into account country of origin information and information from other sources, and concluded that there was no evidence to indicate that the Applicant would not be afforded with the requisite level of protection from the government or the police: §§59-76, 84-85, 95.

(4)  In any event, having regard to her background and working experience, it was open to the Applicant to relocate to other areas within Indonesia to avoid the alleged harm by the ex-husband: §§104-108.

Conclusion

14.Therefore, I do not find any error of law or procedural unfairness or irrationality on the part of the TCAB Decision. I conclude that the Applicant’s intended challenge against the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

Dated the 23^rd day of October 2026

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

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