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

HCAL 1777/2023

[2026] HKCFI 5784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1777 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:

1.  Form 86 be amended, naming Torture Claim Appeal Board / the Non‑Refoulement Claims Petition Office as the Putative Respondent.

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

Observations for the Applicant:

Introduction

1.By Form 86 dated 4 October 2023 but filed on 5 October 2023 (“Form 86”), the Applicant seeks leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) dated 22 September 2023 (“TCAB Decision”), which affirmed the decision of the Director of Immigration (“DOI”) dated 3 February 2023 (“DOI Decision”).

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

3.The Applicant requested for a hearing of this application, which was held on 14 September 2026. When asked she said she wishes to stay longer, because she is still being chased by debt collectors and cannot repay the debt.

Background

4.The Applicant is a national of Indonesia. In gist, she fears that she will be killed by a loan shark to whom she owes money if she is refouled. 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 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”)

9.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.

10.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.

11.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 §14 below.

12.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)  Before the DOI, the Applicant had been represented by the Duty Lawyer Service as the Notice of Decision of 3 February 2023 was sent to the Applicant through them. See also DOI Decision §6.37.

(2)  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 during the interview: §§6.22, 6.24, 6.29-6.31, 6.33, 6.35, 6.39-6.48.

(3)  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.

(4)  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 §§38, 38d, 42.

13.Ground 6 self-evidently has no substance.

14.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: §§36-117. It is clear that the TCAB considered the evidence available thoroughly and in detail. In particular, the TCAB found that:

(1)  Despite accepting that the Applicant did borrow a loan from a loan shark and the loan shark had made oral threats to the Applicant’s family that they would harm or kill the Applicant, the TCAB concluded that the threats were only made to pressure the Applicant to make repayment, and there was no real intention to harm or kill the Applicant or her family members (§§38d, 42, 48-51). It was recorded that the Applicant agreed with that assessment (§§42, 49-50). There was also no serious attempt by the loan shark to find or locate the Applicant, and thus no real risk that the loan shark would continue to seek out the Applicant and harm or kill her if she were to return to Indonesia (§§46-47, 62).

(2)  It was also concluded that the Applicant (and her family) never suffered any physical harm, and she remained to have a good mental condition (§§52-53).

(3)  The attempt by the loan shark to chase payment was a private matter and there is no evidence to suggest that any threat had anything to do with the government authorities (§§54-61). As she never reported the matter to the police, the TCAB would not accept that the police could not assist or protect her (§63).

(4)  Based on country of origin information, although there is evidence of corruption in the Indonesian police, there are measures by the government to improve the protection by the police to the citizens, and steps had been taken to prosecute corrupt government officials: §§70, 72-73. Thus even if the police would not assist, this could not be said to be the official position of the Indonesian government: §75. There is no sufficient basis to find that the Applicant would not be offered reasonable protection by the government: §76.

(5)  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 loan shark, and there is no evidence that the loan shark could locate her anywhere in Indonesia: §§116-117.

15.As to the oral submissions of the Applicant, they do not add anything to the materials already considered by the TCAB, and are not grounds for judicial review of the TCAB Decision. In any case, insofar as the Applicant seeks to claim that there has in fact been a significant change of circumstances or new information relevant to her non-refoulement claim (that she is still being chased by the loan shark), that may be relevant to the potential procedure in ss.37ZO and 37ZP of the Immigration Ordinance (Cap 115), but it is not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15).

Conclusion

16.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