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

HCAL 1225/2023

[2026] HKCFI 5754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1225 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 19 July 2023 (“Form 86”), the Applicant seeks leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) dated 29 June 2023 (“TCAB Decision”), which affirmed the decision of the Director of Immigration (“DOI”) dated 28 April 2022 (“DOI Decision”).

2.The Applicant requested for a hearing of this application, which was held on 14 September 2026. When asked she said she wanted to stay longer in Hong Kong, because she has a 6-year-old son and he has a health problem and relies on medications in Hong Kong, and that if she were to leave Hong Kong, she would not have the financial means to support her son’s medication. She has also submitted medical records of her son from the hospital, which I would consider on a de bene esse basis.

Background

3.The Applicant is a national of Indonesia. In gist, she has had a child out of wedlock and she fears harm or death from her father and family who are strict Muslims and discrimination or ostracization from her village or community. 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.However, both the Form 86 and the affirmation in support are devoid of substance. There is only a bare assertion in the affirmation that the Applicant does not agree with the adjudicator and wants to apply for judicial review. Thus, she did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.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: §§34‑95. In particular, the TCAB found that:

(1)  The TCAB has significant concerns regarding the truth of the central aspects of the Applicant’s claim and evidence, because they are inconsistent with other parts of her evidence – in particular that the Applicant would call and inform her father that she was having a child out of wedlock, when she knew her father would be against it, that she was not close with and never confided in her father, and that she was only pregnant by 8 weeks and the father of the child was still considering to marry her. The TCAB does not accept the Applicant’s claim that her father was a strict observer of NU Islam, or that he has any intention of harming the Applicant and her child, or that she had been disowned or threatened by her family (§§37, 64, 67, 68, 74).

(2)  The TCAB also considered the recently enacted legislation in Indonesia, only to be implemented in 3 years, which criminalise extra-marital sex (which would be punishable with a prison sentence of up to one year), but considered the risk of serious harm or death to be remote because the Applicant accepts that her family would not make a report of her to the authorities (§69).

(3)  Thus, the TCAB does not accept that the Applicant faces a real chance of serious harm, torture or death in any part of Indonesia if she is to return: §75.

9.I have also considered the oral submissions of the Applicant and the new documents submitted by her, being medical records of the Applicant’s son. Her son’s circumstance is not a ground for non-refoulement of the Applicant. In any event, as can be seen from the TCAB Decision, these are matters that had already been taken into account by the TCAB, and the TCAB found that her son was being monitored to assess what treatment he might need in the future, meaning that there was no particular treatment he needs at the moment: §§11, 29, 73. I have also considered the more recent hospital records submitted by the Applicant - none of them indicated that the Applicant’s son required any medication, and the only treatment indicated is “language therapy services”, to be arranged by the school. These matters do not give rise to any ground for non-refoulement, or for judicial review of the TCAB Decision.

Conclusion

10.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

Form CALL-1