YUYUD AHYUDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following;

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 only 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 22 February 2022 (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 (the “Board”) dated 17 December 2021 (the “Board’s Decision”).

2.  I will amend the Form 86 on my own volition to name the Board as the only putative respondent and the Director of Immigration (the “Director”) as the only putative interested party.

3.  In the Affirmation in support of the Leave Application, the Applicant raised various grounds in support of the Leave Application.  I will summarise them below:

a.   The Board was unfair in reaching the Board’s Decision without an oral hearing.  The Board should not have made findings on the Applicant’s credibility without assessing him in person;

b.   The Board’s Decision has not been read or translated to him in his first language.  Therefore, he was unable to provide full grounds in support of his appeal to the Board.  The Applicant requests for the Board’s Decision to be interpreted to him for his better understanding and for him to be given sufficient time to provide further written grounds in support of the Leave Application (if any);

c.   The Applicant would like to request an oral hearing before the Judge to hear his case once again with the assistance of an interpreter. 

4.  The oral hearing of the Leave Application took place on 22 January 2026 (the “Hearing”).  At the Hearing, the Applicant was assisted by an English-Indonesian interpreter (the “Interpreter”).  The Applicant said that he has nothing to add.  

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[1] for reference.

Discussion

6.  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.  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. 

7.  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.

8.  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-refoulment protection: see the Board’s Decision paras. 21-44.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.  

9.  With respect to the Applicant’s complaint in paragraph 3 (a) above, in deciding to dispose of the Applicant’s appeal on paper, the Board had considered the relevant principles enunciated in the Court of Appeal case of ST v Betty Kwan & Ors [2014] 4 HKLRD 277 at paras. 20-54, and took the view that an oral hearing is not necessary: see the Board’s Decision paras. 16-20.  The Board took the view that the Applicant’s claimed fear does not give rise to any Torture Risk, BOR 2 Risk, BOR 3 Risk or Persecution Risk[2] which entitles the Applicant to non-refoulment protection: see the Board’s Decision paras. 21-44.

10.  With respect to paragraph 3 (b) above, the Applicant’s Affirmation is in English and he is able to raise various grounds in the Affirmation to support the Leave Application.  As stated in paragraph 14 of the Affirmation, the Applicant has the help of his friends.  It is up to the Applicant to arrange for translation of the Board’s Decision to understand its content.

11.  With respect to paragraph 3 (c) above, the Hearing was held and the Applicant was assisted by the Interpreter at the Hearing.  However, the Applicant did not make any further submissions during the Hearing.  

12.  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

13.  For the reasons stated above, I will dismiss the 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