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HCAL 908/2025
[2026] HKCFI 333
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 908 of 2025
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BETWEEN
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M Syamsul Hidayat |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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 Levy:
1. The Form 86 be amended accordingly on the court’s own motion.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Background
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 15 April 2025, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 March 2025 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 27 December 2024 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000908_2025_files/the_Board's_Decision.pdf
2. Notwithstanding that the Director’s Decision as well as the Board’s Decision were written in Chinese, I consider it more expedient to render my decision in English as the applicant’s Form 86 and the supporting affirmation were both prepared in the English language.
3. In the Form 86, the applicant named the Board as the interested party. As the Director should have been the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.
4. The basis of the applicant’s claim was that, if refouled to Indonesia, he would be harmed or killed by the creditor for an unpaid loan. The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
5. The applicant has requested for an oral hearing. On 7 August 2025, the applicant filed an affirmation for the withdrawal of the Leave Application. On 13 August 2025, the Removal Assessment and Litigation (Removal and Deportation) Section (2) of the Immigration Department separately faxed a letter to the court, informing the court that the applicant would like to withdraw his judicial review application. Enclosed with the said letter was the applicant’s signed memo in English dated 1 August 2025. In the memo, the applicant stated that he would like to withdraw the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.
Discussion
6. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
7. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 and the supporting affirmation contained no such grounds.
8. As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[3] In the present case, the Board found that the past ill-treatment failed to meet the requisite level of severity, and further that the creditor had no serious intention to harm the applicant. The Board therefore concluded that the applicant would not face a real risk of harm if refouled. It further found that state protection and internal relocation were both reasonably available. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.
9. Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].
Withdrawal application
10. Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Orders
11. The Form 86 be amended accordingly on the court’s own motion.
12. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 19th day of January 2026
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( Alfred CHAN )
for Registrar, High Court
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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 19/1/2026
M Syamsul Hidayat
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 19/1/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 25387
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2699/24 (formerly RBCZ 5002374/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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