SEMAUN MUHLISIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 898/2026

[2026] HKCFI 5009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 898 OF 2026

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Indonesia who arrived in Hong Kong on 18 February 2025 as a visitor with permission to remain as such up to 20 March 2025 when he did not depart and instead overstayed, and some 7 months later on 21 October 2025 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Indonesia he would be harmed or killed by his step-brother over their personal disputes. He was subsequently released on recognizance pending the determination of his claim.

2.  In pursuance of Section 37Y of the Immigration Ordinance, Cap 115, the Applicant on 27 November 2025 was served with a Notice to Persons Making a Non-refoulement Claim with information as to the requirements to complete and return the accompanied Non-refoulement Claim Form (“NCF”) within the stipulated time, and that on the same day he was also referred to the Duty Lawyer Service (“DLS”) for legal representation.

3.  Shortly thereafter on 18 December 2025 the Applicant through his lawyer from DLS informed the Director of Immigration (“Director”) of his withdrawal of his non-refoulement claim as his problem with his step-brother in his home country had been resolved, that his step-brother had moved away and no longer posed any threats to him, and that he wanted to return to Indonesia and requested for help to arrange for his return flight air ticket.

4.  As a result, the Applicant was informed by the Director by a letter dated 23 December 2025 that his non-refoulement claim had accordingly been treated as withdrawn.

5.  However, less than 4 weeks later on 20 January 2026 the Applicant in writing requested to re-open his claim as he had recently been informed by his friends in Indonesia that some unknown men had come to his home in his home district looking for him that he again became fearful for his safety that he wanted to re-open his claim.

6.  By a letter dated 26 January 2026 the Director in pursuance of Section 37ZE (2) of the Immigration Ordinance required the Applicant to provide sufficient evidence in writing to satisfy an immigration officer that since the withdrawal of his claim that there had been a change of circumstances that could not reasonably have been foreseen by him when he earlier made his request to withdraw his claim and that when taken together with the material previously submitted for his claim could increase the prospect of success of his claim, or by reason of special circumstances that it would be unjust not to re-open his claim.

7.  On 9 February 2026 the Applicant replied to simply state that he had got more problems in his home country that he cannot return but without any further details or particulars or elaborations.

8.  By a Notice of Decision dated 13 February 2026 the Director refused to allow the Applicant’s request to re-open his claim upon finding that his bare and bald assertion of being informed by some friends of some unknown men looking for him in Indonesia but without any further relevant or necessary information as to why and how they would post any real risk of threats of harm to him that he had failed to satisfy an immigration officer of the requirements stipulated by Section 37ZE (2)(a) or (b) of the Ordinance as noted above.

9.  On 26 February 2026 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 9 April 2026 before the Board during which he gave evidence and answered questions raised of his appeal by the Adjudicator for the Board. On 22 April 2026 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found that the Applicant could only repeat what he had earlier stated in his bare assertions in his request to re-open his claim despite being invited at the hearing by the Adjudicator to provide further details and elaborations for his request or as to his intended claim but which he was unable to do so at all that it was not satisfied that he had shown that there had been any change of circumstances that could not have been foreseen by him since his earlier withdrawal or that when taken together with the material previously submitted for his claim could increase the prospect of success of his intended claim or that there were any special circumstances that it would be unjust not to re-open his claim under Section 37ZE (2) of the Immigration Ordinance.

11.  On 11 May 2026 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the Board rejected his appeal for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his request to re-open his non-refoulement claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration of the Applicant’s request to re-open his claim.

15.  Moreover, the Applicant has recently on 8 and 17 of July 2026 in writing requested to withdraw his application as his problems and issues in his home country have been resolved that he now wants to return to Indonesia as soon as possible.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem or issue for him to return to his home country, I accordingly dismiss his leave application.

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