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HCAL 531/2023
[2026] HKCFI 4296
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 531 of 2023
BETWEEN
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Kasman |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims)
Sabrina Ho:
1. The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board
/Non-refoulement Claims Petition Office as the only
Putative Respondent and 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 a Form 86 filed on 3 April 2023 (the “Form”), the Applicant applied for leave to apply
for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board /
Non refoulement Claims Petition Office dated 23 February 2023[1] (the “Board”, the “Board’s Decision”).
2. In the Form, the Applicant named both the Board and the Director of Immigration (the
“Director”) as the respondent, and the Board as the interested party. I amend the Form on my own volition
to name the Board as the only Putative Respondent and the Director as the Putative Interested Party.
3. In the Affirmation in support of the Leave Application (the
“Affirmation”), the Applicant stated that he is scared to go back to Indonesia as he had an outstanding
debt there and the loan shark would kill him. The Applicant exhibited the hearing bundle used before the hearing
before the Board and the Board’s Decision as exhibits to the Affirmation.
4. The Applicant requested an oral hearing for the Leave
Application, which took place on 16 June 2026 (the “Hearing”). At the Hearing, the Applicant said
that he does not have anything to add orally.
Background
5. The Applicant’s background, the basis of his claim and the
arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to
repeat the same here. The hyperlink to the Board’s Decision is included below[2] for reference.
Discussion
6. As mentioned above, save for claiming in the Affirmation that
his life is still in danger in his home country, the Applicant has not identified any other ground in support of
the Leave Application.
7. The relevant legal principles are well established. The
Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision
makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced
standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should
not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials,
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, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of
Immigration [2018] HKCA 524 at para. 14; Re Limbu Birkhaman [2019] HKCA 50 at para. 11. There must be a reasonably arguable case with a
realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v
Winnie Cheung (2007) 10 HKCFAR 676.
8. Having considered all the relevant materials before me, I do
not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any
realistic prospect of success.
9. I have reviewed the Board’s Decision in detail. The
Board had fully considered the Applicant’s evidence and his grounds for challenging the Director’s decision in
refusing his claim for non-refoulement protection. The Board took the view that the Applicant has failed
to establish any real risk pertinent to the grounds in the Applicant’s claim: see the Board’s Decision paras.
45-46. Further, the Board found that there were internal relocation options available to the Applicant:
see the Board’s Decision paras. 47-51. The Board therefore found that the Applicant would not face any
Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[3] if he returns to Indonesia and rejected the Applicant’s appeal: see the Board’s
Decision paras. 52-53. I do not consider there to be any error of law, procedural unfairness or
irrationality in the Board’s Decision.
10. Leave application of this sort is meant to be a filtering
process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23. I have considered all the relevant materials in
reaching the present decision.
Conclusion
11. For the reasons stated above, I will dismiss the Leave
Application.
Dated the 7th day of August 2026
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(Klein Tse)
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:
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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)).
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Sent to the Applicant
on 7/8/2026
Kasman
Applicant’s ref. no:
Nil.
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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
7/8/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16458
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 699/19 (formerly RBCZ 10491/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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