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

HCAL 1231/2023

[2026] HKCFI 5783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1231 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 the Applicant being absent in open court;

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

1.  Form 86 be amended, naming the Director of Immigration as the putative interested party.

2.  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 11 July 2023 (“TCAB Decision”), which affirmed the decision of the Director of Immigration (“DOI”) dated 30 August 2022 (“DOI Decision”).

2.The Form 86 incorrectly named the TCAB as the putative interested party. I therefore amend the Form 86 on my own motion to name the DOI as the putative interested party.

3.The Applicant requested for a hearing of this application, which was held on 14 September 2026. She was absent from the hearing. I see no irregularity in the notification process.

Background

4.The Applicant is a national of Indonesia. In gist, she fears that she will be harmed or killed by a creditor because she failed to repay her deceased mother’s 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

5.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.

6.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.

7.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.

8.The Applicant’s Form 86 contained sections called “Relief sought” and “Grounds on which relief is sought”. The latter section contained the following grounds: -

(1)  “It is trite law that a hearing before the Appeal Board is a rehearing, and the Adjudicator is required to consider afresh the original decision and arrive at his own determination in respect of the claims.” (“Ground 1”)

(2)  “The respondent’s decision to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.” (“Ground 2”)

(3)  “The respondent had unlawfully fattered (sic) his discretion by refusing the applicant’s appeal on the grounds that they didn’t satisfy with the requirements.” (“Ground 3”)

(4)  “The respondent failed to meet the greater care and duty owned (sic) to a self-represented claimant.” (“Ground 4”)

(5)  “The Adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.” (“Ground 5”)

(6)  “It must be keep in mind that the life and limb are in jeopardy and the applicant’s fundamental human rights not to be subjected to torture in (sic) involved.” (“Ground 6”)

(7)  “In dismissing the applicant’s appeal/petition, there is no indication that the Adjudicator interacted with the facts of applicant’s claim, conducted any analysis of the supporting documents or turned his mind to the ground under consideration being the risk of violation of the applicant’s right to life under BOR 2.” (“Ground 7”)

(8)  “The applicant will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on source of news which is not officially recognized, or it is simply hearsay.” (“Ground 8”)

(9)  “The characterization of the appeal process is grounded in the consistent practice of the Appeal Board in treating each appeal/petition as a de novo hearing, whereby the appeal Board is not confined to any grounds of appeal put forward, but considers all the facts of the claim afresh to come to its own findings. The established practice of the appeal Board in this regard is either grounded and illustrative of its relevant obligations; and/or in any case has induced a procedural expectation that a claim would be considered afresh under applicable grounds.” (“Ground 9”)

(10)  “The Adjudicator has relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculation.” (“Ground 10”)

(11)  “In spite of the applicant’s problems in his home country are very severe and he had already submitted the documents on behalf of the applicant’s claim, the Adjudicator of the Torture Claims Appeal Board may not be greater caring and made the claimant disappointed.” (“Ground 11”)

9.However, each of the above grounds merely consists 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. They are therefore not effective grounds and cannot assist the Applicant: Re Haider Khalil [2021] HKCA 223 at §16.

10.Nevertheless, given the seriousness of the issues at hand, I have scrutinised the TCAB Decision carefully. I have come to the view that none of the above Grounds can be established or considered as valid or effective public law grounds, nor do I find any error of law or procedural unfairness or irrationality on the part of the TCAB Decision.

11.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: §§25-51. It is clear that the TCAB considered the evidence available thoroughly and in detail.  In particular, the TCAB found that:

(1)  It was not satisfied that any of her claims in relation to the loan shark were truthful, as the Applicant was unable to recall even the basic aspects of her claims during the hearing and this was because they had been manufactured: §§27-29.

(2)  Even on the Applicant’s own evidence, it was not established that the loan shark had any interest in pursuing the Applicant, or that they would even know if she had returned to another part of Indonesia, given that the loan sharks only went to find her once in 2020 and never contacted her again: §30.

(3)  In any event, based on country of origin information, it was open to the Applicant to relocate to other areas within Indonesia, and it would not be unduly harsh or unreasonable for the Applicant to do so: §30.

12.In particular, having regard to the Grounds set out by the Applicant in the Form 86:

(1)  Contrary to Grounds 1 and 9, it is evident that the TCAB considered the Applicant’s claim afresh, and did not simply adopt, or give improper weight to, the DOI’s decision. As recorded in the TCAB Decision §§18-24 and §§27-51, the TCAB asked the Applicant about her claim in detail, and has assessed them afresh.

(2)  Grounds 2, 4 and 5 are unparticularised and there was no attempt to identify the particular instance where these alleged errors were made in the TCAB Decision. They cannot amount to proper grounds for judicial review.

(3)  Ground 3 cannot be correct. Refusing the Applicant’s appeal on the ground that it did not satisfy the requirements for the individual grounds for non-refoulement is precisely the correct thing to do.

(4)  Grounds 6 and 7 are not correct. It is clear from the TCAB Decision that the TCAB had borne in mind the Applicant’s claim that she is in risk of harm and torture and that her life is at risk (§§4, 32-45), and had clearly conducted a factual assessment of the Applicant’s claim (§§25-31).

(5)  As to Grounds 8 and 10, it is entirely legitimate for the TCAB to rely on country of origin information, and the TCAB had clearly identified the source of all such information that it referred to in the TCAB Decision. The Applicant has not identified what are the alleged “outdated” cases and “dramatic changes”, or the impermissible “source of news”.

(6)  As to Ground 11, it is not a valid ground for judicial review to say that the TCAB ought to be more “caring” or ought not to disappoint the Applicant. In any event, the TCAB had found the Applicant’s alleged fears to be incredible.

Conclusion

13.Therefore, 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