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BETWEEN
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Beny Purnomo
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Applicant |
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Torture Claims Appeal Board |
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Respondent |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. 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 13 July 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 8 May 2020 (“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/HCAL000990_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all 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 August 2019, which rejected the applicant’s non-refoulement claim, and confirmed the same.
Late application
3. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.
4. However, the applicant filed Form 86 on 13 July 2021, which was more than 14 months after the Board’s Decision (made on 8 May 2020). The applicant was hence late for more than 11 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.
5. As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
(i) the length of the delay;
(ii) the reason for the delay;
(iii) the merits of the intended application; and
(iv) any prejudice to the putative respondent and to public administration.
6. The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.
7. The delay of more than 11 months is very substantial, and there is no reason for this court to extend the time for the applicant to make the application when no explanation was given by the applicant. More importantly, there is no merits of the intended judicial review at all as discussed below. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.
8. However, for the sake of completeness, this court will still examine the merits of the Leave Application.
The applicant’s case
9. 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.
10. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, he would be ill-treated or killed by his brother-in-law called LASI who threatened to kill him if he did not give LASI the family home for repayment of a loan taken out by the applicant’s late mother from LASI for medical treatment. The applicant also feared that he would be harmed or killed by terrorists, and claimed that he had been kidnapped and beaten by four terrorists as he refused to join them in making bombs for terrorist attacks.
Oral hearing
11. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 9 April 2026.
12. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
13. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
14. 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).
15. The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 13 July 2021.
Discussion
16. 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).
17. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
18. In assessing the appeal by the applicant, the Board held an oral hearing on 22 January 2020 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.
19. As can be seen from the Board’s Decision, the Board had analyzed both aspects of the applicant’s claims.
20. In respect of the claimed threat from LASI, the Board found that the applicant’s dispute with LASI was only a private one relating to the repaying of debt or otherwise the giving of the applicant’s home for the repayment of such debt. LASI was only a businessman. There was no evidence to show any state acquiescence in the applicant’s dispute with LASI, and any threat posed by LASI was not for any Convention reason. The applicant was not hurt by LASI. The Board found that LASI had no real intention to ill-treat or kill the applicant. The Board did not accept that the ill-treatment encountered by the applicant from LASI attained a minimum level of severity.
21. As to the claim about the terrorists, the Board found that the kidnap by the terrorists was a single event only. The applicant was not attacked or chased by the terrorists anymore after he escaped from them.
22. Moreover, the Board found from country of origin information (“COI”) that the Indonesian government had been implementing measures to improve the efficiency of the Indonesian police. It was the applicant’s evidence that he only reported once to the police about LASI and the police accepted the case. The applicant had never reported the kidnap by the terrorists to the police in Indonesia.
23. In terms of internal relocation, the Board found no evidence to substantiate the applicant’s allegation that LASI would spend so much resources to locate him throughout Indonesia. The Board was of the view that there were many viable alternatives for the applicant, being young with 12 years of education and some work experience, to relocate to other areas of Indonesia to avoid the perceived threats and earn a living there.
24. Thus, the Board found that the applicant did not face any genuine risk of any of the proscribed forms of harm under the USM if he were refouled to Indonesia.
25. 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.
26. 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.
27. 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
28. For reasons aforesaid, the Leave Application is dismissed for being made out of time and devoid of merits.
Dated the 22nd day of April 2026
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( Teresa NG )
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/Handed to the applicant/the applicant’s solicitors on: 22 April 2026
Applicant’s ref. no:
Nil
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Sent/Handed 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: 22 April 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
The putative respondent’s ref. no.: USM 16289/19/9/45/I1745
Director of Immigration
The putative interested party’s ref. no.: QA T/C 686/19
(formerly RBCZ 10432/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1