AZIS ABDUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1214/2024

[2025] HKCFI 4107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1214 OF 2024

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.  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 26 July 2024, 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 26 October 2023 (“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/2024/HCAL001214_2024_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 rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 13 July 2023, which rejected the applicant’s non-refoulement claim.

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 26 July 2024, which was 9 months after the Board’s Decision (made on 26 October 2023). The applicant was hence late for 6 months in making the Leave Application.

5.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which 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 in making the Leave Application. At the oral hearing before this court on 2 September 2025, the applicant merely explained that he did not know the procedures.

7.  A delay of more than 6 months is substantial, and there is no justification for the delay when no good reason is given. This court does not accept that the applicant’s lack of knowledge about the procedures can explain away the substantial delay. There is also no merits of the intended judicial review as discussed below.

8.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

9.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because he feared that if returned to Indonesia, he would be harmed or killed by his siblings and the villagers of Menurik, as he had converted from Sunni Muslim to Ahmadiyya Muslim.

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 2 September 2025.

13.  When this court asked the applicant to elaborate the grounds for his intended judicial review as stated in his supporting affirmation dated 26 July 2024, he merely said that he had a serious problem in Indonesia, his life was in danger and the community in Indonesia considered him as an enemy because he was a follower of Ahmadiyya Muslim. He admitted that all these matters had already been raised to the Board and he did not know what grounds he had for the intended judicial review. However, he asked this court to give him time to submit more evidence.

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 advance any ground for his intended judicial review in Form 86, but in his supporting affirmation, he gave the grounds by saying that he had many objection, the adjudicator did not give him true decision and he wanted to talk to the adjudicator again.

16.  As aforesaid, the applicant did not elaborate on these grounds at the oral hearing before this court but just asked this court to give him time to submit more evidence.

Discussion

17.  First of all, the applicant seemed to suggest that he had more evidence to submit. However, if he intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

18.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

19.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to give him time to submit more evidence.

20.  The applicant stated in his supporting affirmation that the adjudicator did not give a true decision and he wanted to talk to the adjudicator again, but the Board held an oral hearing on 6 October 2023 so as to let the applicant have a chance to supplement what he had stated in his claim. Thus, the applicant did have a chance to present his case to the Board in person.

21.  The applicant also did not specify in what way the decision was not a true decision. 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”.

22.  Thus, the general assertion that the adjudicator did not give a true decision cannot help the applicant at all.

23.  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, supra).

24.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

25.  After careful consideration of the applicant’s case, the Board found that there was no basis of his claim. The applicant’s siblings were just uttering bad things like it was better for him to die, and his siblings did nothing further to harm him. The Board found that it was more likely than not that his siblings were simply venting their emotion against the applicant by uttering these bad things without the intention of harming or killing him.

26.  As to his villagers’ threat, the applicant’s evidence was that the villagers attacked him when his identity as the only Ahmadiyya Muslim in the village was disclosed. The villagers then threatened to kill him if he did not move away from his village and once he moved away from his village, he encountered no further trouble from any of his villagers. It was therefore the Board’s finding that his villagers were simply uttering the threat to pressurize the applicant to leave the village. Once the applicant left the village, these villagers did nothing further indicating that they would harm or kill the applicant. In fact, after the applicant had moved to live in Tangerang Selatan, he was able to live a normal life. He was even able to travel abroad freely for sightseeing.

27.  The Board also considered the applicant’s concern of what he learnt from social media about incidents of mysterious disappearances or abductions of Ahmadiyya Muslim in Indonesia. However, the Board found that it was unclear as to in which part(s) of Indonesia these incidents took place, or what was the background behind each of these incidents. In any event, there was no evidence suggesting that the applicant was facing similar danger during his stay in Indonesia. The applicant was able to travel freely in and out of Indonesia before he decided to come to Hong Kong in January 2023.

28.  The applicant believed that the police in Indonesia would not protect him because they were corrupt and would discriminate him as an Ahmadiyya Muslim, which was to a certain extent supported by objective country of origin information (“COI”). However, there was also information that the Indonesian Government did take measures to improve the Indonesian police in terms of efficiency and concern for human rights. There was objective COI suggesting that religious freedom was respected by the constitution of Indonesia and the government had provided assistance and protection to Ahmadiyya Muslim.

29.  Thus, the Board found nothing in the applicant’s case to suggest that he had received treatment which fell within the meaning of “torture” under Section 37U(1) of the Immigration Ordinance.

30.  The Board further found no evidence suggesting that the applicant’s life or freedom would be threatened because he had converted his religion to Ahmadiyya Muslim. On the contrary, the evidence suggested that he was able to live a normal life after moving out of his home village and he was able to travel freely in and out of the country without any hindrance from the authority.

31.  As to the viability of internal relocation, the Board found that there should be no difficulty for the applicant, being a healthy mature adult who had received 15 years of formal education up to university level (incomplete) with 11 years of work experience as a manager, to survive if he moved to stay away from his home village. Internal relocation was also permissible under the law of Indonesia. Thus, internal relocation was a viable option for the applicant to avoid his siblings and/or his villagers if he were to return to Indonesia.

32.  The Board had therefore fully assessed the danger of the applicant and found his claim for non-refoulement protection failed on all the applicable grounds under the USM.

33.  The assessment of evidence, COI materials and risk of harm was primarily within the realm 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 decision.

34.  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.

35.  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

36.  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