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

HCAL 1230/2023

[2026] HKCFI 5782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1230 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 20 July 2023 (“Form 86”), the Applicant seeks leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) dated 13 July 2023 (“TCAB Decision”), which affirmed the decision of the Director of Immigration (“DOI”) dated 6 July 2022 (“DOI Decision”).

2.The Applicant requested for a hearing of this application, which was held on 15 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 was angry that she lost her job in Hong Kong and has no income to help pay off his loan. 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.In a further supporting affirmation filed on 3 June 2025, the Applicant produced a 3-page written submission in support of her application (“Submissions”), the relevant parts are quoted as follows:

“(2) I am disagree with the decision made by the Director of Immigration as well as the adjudicator of Torture Claims Appeal Board. I do not think my case has been determined fairly.

(3) Without knowing through how case was determined, it is not easy for me to appeal against the decision. I believe there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claim.

(4) … I was never provided with proper legal and language assistance. With my limitation in terms of resources, funding and language capabilities, it has been burden some for a Non-refoulement claimants like me to appeal against the decision. The determination of Appeal/petition has been never read to me on my own language, and I believe such failures in providing proper assistance to Non-refoulement claimants is procedurally unfair.

(5) The Respondent’s is in breach of procedural fairness in the following parts:

(A) The Respondent’s had unlawfully fettered his discretion by refused my appeal on the grounds that they did not satisfy the requirements.

(B) The Adjudicator acted in a procedural unfairness in dealing with my appeal;

(C) The Respondent’s decisions to refuse my appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness;

(D) The Respondent’s failed to meet the greater care and duty owed to self-Represented claimants.

(6) The discriminatory act of authorities towards Non-refoulement claimants merely on the basis of quick disposed of Non-refoulement cases is unacceptable and is determinate to the spirit of Judicial system.”

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

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 at the screening interview to the DOI’s questions: §§6.9, 6.10, 6.13, 6.15, 6.22-6.26, 6.29-6.32, 6.34, 6.36-6.50, 6.52-6.54, 6.56-6.57.

(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 TCAB was able to make inquiries of the Applicant during the hearing and the Applicant’s response was recorded: see TCAB Decision §33.

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: §§30-60. It is clear that the TCAB considered the evidence available thoroughly and in detail. In particular, the TCAB found that:

(1)  Despite that the Applicant’s husband made threats to kill her and had previously used violence on the Applicant, the TCAB concluded on the evidence that he did not have a real intention to kill her, and he only wanted to express his anger by using violence against her. She had never suffered any injuries serious enough that she would need to go to the hospital (§32). The Applicant had not encountered her husband after 2018, and she had also returned to Indonesia between November 2019 and January 2020 and her husband did not locate her (§§33, 45).

(2)  There was no threat or past attacks from the loan shark (§34).

(3)  There was no evidence suggesting that the feared treatment was inflicted by or acquiesced in by government officials, and her husband was just an ordinary citizen with no relation to government authorities (§§36, 46).

(4)  Based on country of origin information, the Indonesian government has endeavoured to take proper action to protect citizen rights, and there are non-government organisations that advocate for women’s rights. The TCAB considered that the Applicant can consider seeking assistance from the police and from these organisations (§42).

(5)  In any event, having regard to her background and working experience, the Applicant could relocate internally and there is no evidence that the husband had the ability to locate her (§§53-60).

14.I am also of the view that the Submissions do not amount to any viable grounds of judicial review:

(1)  As the Applicant had already appealed the DOI Decision to the TCAB which was conducted by way of rehearing, the TCAB Decision effectively supersedes the DOI Decision: see Re Moshsin Ali [2018] HKCA 549 at §45. Hence, the DOI Decision is not a decision which is susceptible to judicial review. Any point directed against the DOI or the DOI Decision must be dismissed.

(2)  The points at Submissions §§(2) and (5) are merely 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.

(3)  Submissions §§(3) and (4) have no merit and must be rejected. Neither the high standard of fairness prescribes that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, §§17-18. Before the DOI, the Applicant had been represented by the Duty Lawyer Service as the Notice of Decision of 6 July 2022 was sent to the Applicant through them. Duty Lawyer Service is also available on appeal subject to a merits test, and in the absence of any assertion by the Applicant that the merits test had not been properly applied, she cannot complain about the lack of legal representation in the proceedings before the TCAB: Re Zunariyah §19.

(4)  Likewise, the high standards of fairness required by law would not entail an interpretation service being made available at any time the applicant desires: Re Gurnishan Singh [2018] HKCA 704 at §13. As noted at §111(3) above, there had been meaningful communication between the Applicant and the TCAB at the hearing before it. It is also noted that all court documents filed by the Applicant were written in English, indicating either that the Applicant is familiar with the English language or that she had the means and access to such language assistance if needed.

(5)  In Submissions §(6), the Applicant complained that the quick disposal of non-refoulement cases is discriminatory. However, it is factually incorrect that the TCAB disposed of her case quickly. The oral hearing was held on 29 June 2023 and the TCAB gave its decision on 13 July 2023. It means that the Board took more than 2 weeks to consider the Applicant’s case, which can hardly be regarded as quick disposal. The TCAB also gave very detailed discussions and analysis of the Applicant’s case, which shows that the TCAB did consider the Applicant’s case very carefully and thoroughly: see §13 above. There is simply nothing to show that the TCAB was discriminatory towards the Applicant.

Conclusion

15.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