KARIM MASHUDI ABDULLAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2586/2024

[2025] HKCFI 6047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2586 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 or counsel in open court;

1.  On this court’s own motion, the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 21 November 2023”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  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 23 December 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 21 November 2024.

2.  However, the Board only made one decision dated 21 November 2023 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 March 2023 (“the Director’s Decision”). The applicant also annexed a copy of the Board’s Decision to his supporting affirmation dated 23 December 2024. Thus, it is clear that the Leave Application was in respect of 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/HCAL002586_2024_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s application 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 and confirmed the Director’s Decision, which rejected his non-refoulement claim.

Amendment

4.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Hence, it is so amended on this court’s own motion.

Late application

5.  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.

6.  The applicant filed Form 86 on 23 December 2024, which was more than 13 months after the Board’s Decision (made on 21 November 2023). The applicant was hence late for more than 10 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.

7.  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.

8.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.

9.  The delay of more than 10 months is substantial. More importantly, there is no merits of the intended judicial review as discussed below.

10.  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.

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

The applicant’s case

12.  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.

13.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, his creditor would harm or kill him as he could not repay the creditor the fish that he borrowed from the creditor which was worthy of around 300 million Indonesian Rupiah.

Withdrawal of the Leave Application

14.  Before the Leave Application was dealt with, the applicant filed an affirmation dated 26 August 2025 to withdraw the Leave Application.

15.  As stated in the applicant’s affirmation, he wanted to go back to his country so he wanted to withdraw his judicial review, and he would go home as soon as possible. However, he did not state that it was safe for him to go back to his home country.

16.  There is no evidence to show that the applicant made the withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though he had previously requested one.

17.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

18.  Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

19.  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).

20.  The applicant did not advance any ground for his intended judicial review in Form 86.

21.  In his supporting affirmation dated 23 December 2024, under the heading “GROUNDS”, he stated that he appealed against the Director’s Decision on Torture Risk[1], BOR 3 Risk[2] and BOR 2 Risk[3]. He also stated that he had many objections and the adjudicator did not give him a true decision and he wanted to talk to the adjudicator again.

Discussion

22.  First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, it is not necessary for this court to deal with the applicant’s dissatisfaction with the Director’s Decision on Torture Risk, BOR 3 Risk and BOR 2 Risk. This court will consider only those grounds directed at the Board in respect of the Board’s Decision.

23.  However, the applicant only mentioned in the affirmation that he had many objections and the adjudicator did not give him a true decision. He did not specify what objections he had.

24.  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, the general assertion that he had many objections could not establish any valid ground to challenge the Board’s Decision when it is so vague and general without any requisite particulars related to the applicant’s case.

25.  The request that he wanted to talk to the adjudicator again is simply not a ground for judicial review.

26.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

27.  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).

28.  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 specific ground being advanced by the applicant for the intended judicial review.

29.  In assessing the applicant’s appeal, the Board held an oral hearing on 9 November 2023. The applicant was present and had an opportunity to present his case to the Board in person.

30.  After due consideration of the evidence and the oral testimony of the applicant, the Board found that although the applicant’s story was internally consistent in respect of his monetary dispute with his creditor, the applicant’s problem with his creditor was a purely private matter relating to his outstanding repayment for his creditor’s fish supply. The creditor had never inflicted any physical harm on him and his family. The creditor had taken no concrete action to hurt the applicant apart from the verbal life threats. The ill-treatment did not amount to torture nor attain a minimum level of severity.

31.  There was also no evidence of state acquiescence and the alleged ill-treatment was unrelated to any of the Convention reasons. Based on extensive country of origin information (“COI”) and the evidence, the Board found that reasonable protection from the Indonesian government was available to the applicant.

32.  Thus, the Board found that the applicant’s 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 applicant’s alleged danger in his home country had indeed been duly assessed by the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.

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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

36.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and also for devoid of merits.

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