ENIEKOWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]
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HCAL 704/2022
[2026] HKCFI 1914
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 704 of 2022
BETWEEN | ||
| Eniekowati | Applicant | |
| and | ||
| Torture Claims Appeal Board/ | Putative | |
| Non-refoulement Claims Petition Office | Respondent | |
| and | ||
| Director of Immigration | Putative | |
| Interested Party | ||
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 the documents and oral submissions by the Applicant in open court; |
Order by Deputy High Court Judge (Non-refoulement Claims) Bonnie Cheng:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 dated 2 August 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 14 July 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 20 September 2021.
2. An oral hearing, which was requested by the Applicant, took place before me on 24 February 2026. The Applicant attended in person.
3. At the hearing, the Applicant indicated that she had nothing to add to the papers submitted for her Leave Application.
Background
4. The Applicant is from Indonesia. Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1] I will not repeat them here. Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.
5. In short, the Applicant claimed to be in fear of being harmed or killed by her ex-husband because she had a boyfriend in Hong Kong. According to the Applicant, her ex-husband had threatened to kill her if she returned to Indonesia, and threatened to harm her family if she did not pay him money.
Discussion
6. Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its 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.
7. The court’s role in judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board: Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys 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.
8. In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 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.
9. In this Leave Application, the Applicant has not stated any ground of judicial review. She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.
10. In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality. The Board assessed the evidence in detail and gave adequate reasons for its decision. In particular, it was found that the Applicant’s evidence at the hearing before the Board differed in important respects from her previous claims. For example, the Applicant testified that she had not spoken to her ex-husband since 2018, but she previously claimed that he demanded money from her in 2019 and vandalised her parents’ home in 2021. She then said at the hearing before the Board that her ex-husband visited her parents’ home in 2018 and only hit a table: §§23, 29. The Board also noted the Applicant’s own evidence that her ex-husband had never behaved violently towards her: §28. The Board found that the Applicant had not established that she would face a real risk of ill-treatment if returned to Indonesia: §30.
11. In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable.
Conclusion
12. I make an order that the Leave Application be dismissed.
Dated the 30th day of April 2026
| (Wilinda YIU) for Registrar, High Court |
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
| Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must: | ||||
| a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). | Sent to the Applicant on 30/4/2026 Eniekowati Applicant’s ref. no: Nil | Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30/4/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: Director of Immigration Putative Interested Party’s ref. no.: Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) |
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