AKHMAD ASRORI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1253/2021

[2026] HKCFI 2108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1253 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”. 

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 7 September 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 9 June 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001253_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed to establish his non-refoulement claim on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 September 2020 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s claim for non-refoulement protection.

Amendment

3.  The applicant named the Board as the proposed respondent in Form 86, but spelt the Board’s name wrong.

4.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

5.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, he would be harmed or killed by the parents of a kid whom he knocked down and killed while he was driving his motorcycle. The parents of the deceased kid threatened to kill the applicant in revenge.

Oral hearing

7.  The applicant requested for an oral hearing and his case was heard on 19 March 2026.

8.  When this court asked the applicant to elaborate on the grounds for the intended judicial review which were contained in his supporting affirmation dated 7 September 2021, the applicant merely replied that he would rely on what were written there and he had nothing else to say.

Grounds for judicial review

9.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.  The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 7 September 2021, the applicant advanced a few general grounds under the heading “GROUNDS”.

11.  The grounds contained therein are summarised as follows:-

(1)  The applicant has life threat in his country;

(2)  The Director and the Adjudicator rejected his claim by some “unwanted argument”;

(3)  The Adjudicator did not pay any attention and did not give the applicant any opportunity; and

(4)  The applicant did not agree with the Director and the Adjudicator.

12.  As aforesaid, the applicant did not elaborate on any of these grounds at the oral hearing.

Discussion

13.  First of all, the applicant’s danger in his country had been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review. It does not help the applicant when he merely asserted that he did not agree with the Board’s Decision either. Thus, grounds (1) and (4) are not valid grounds for judicial review.

14.  In ground (2), the applicant asserted that the Board rejected his claim by some “unwanted argument”. However, he did not specify what the “unwanted argument” was.

15.  Similarly, the applicant complained in ground (3) that the Board did not pay any attention and did not give him any opportunity without any particulars. He did not state which aspects of his claim had the Board failed to pay attention to, or how the Board did not give him any opportunity.

16.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, such general allegations cannot help the applicant at all.

17.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

18.  Thus, despite the fact that the applicant did not advance any valid grounds for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

19.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 29 January 2021. The applicant was present and was given the chance to present his case to the Board in person.

20.  After due consideration of the evidence, the Board found that the applicant failed on his credibility. There was no factual basis on which to found any of the applicable grounds under the USM. The Board found it hard to believe that no police report was made regarding the fatal accident. On the applicant’s own account, the police had never looked for him. His evidence regarding the alleged fatal accident was vague and implausible. The applicant could not even provide the date, time, location or particulars of the alleged accident, or give any description or background of the victim of the accident, whom the applicant only alleged as a neighbour’s kid. Having tested the applicant’s account carefully and looking at the evidence as a whole, the Board had no hesitation in rejecting it.

21.  Further or alternatively, even taking the applicant’s account at its highest, the Board found no real risk that the applicant would be subjected to serious harm on his return to his country. The alleged victim’s parents were non-state actors. The applicant had never met them after the accident. Even on the applicant’s own evidence, the victim’s father only visited his home twice, but did not hurt any of his family members including his son.

22.  Moreover, state protection would be available to the applicant. The Board found from extensive country of origin information (“COI”) that there was a systemic sufficiency of state protection in Indonesia and there was nothing particular in the applicant’s circumstances that the Indonesian government would be unwilling to afford him the requisite protection if he resorted to it.

23.  The Board also found the applicant’s assertion regarding internal relocation, namely that he would not be able to relocate because the parents of the victim had many connections and friends and would be able to locate him, as completely groundless. The applicant in fact knew nothing about them, not even their names. The Board considered that given the size and population of the country, there was no evidence that the parents of the victim had the necessary power or influence to be aware of the applicant’s return to Indonesia, or the resources or reach to locate the applicant all over the country.

24.  Thus, the Board found internal relocation to be a viable option for the applicant. It would not be unduly harsh or unsafe for the applicant, being an able-bodied male in his thirties with experience working as a farmer and a fishmonger, to relocate to other parts of the country. The Board found no reason why the applicant could not find comparable employment or be otherwise gainfully employed and live independently with or without his son in other cities in the country.

25.  Thus, the Board concluded that the applicant had failed to demonstrate any real risk on all the applicable grounds under the USM.

26.  The finding of facts including the assessment of evidence, COI and risk of harm was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

27.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

28.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

29.  For reasons aforesaid, the Leave Application is dismissed.

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