DEJI MUHAMAD v. TORTURE CLAIMS APPEAL BOAR

HCAL 305/2025

[2025] HKCFI 5902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 305 OF 2025

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 name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 28 January 2025, 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 28 November 2024 (“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/2025/HCAL000305_2025_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 20 September 2024, which rejected his non-refoulement claim.

Amendments

3.  The applicant named the Board and “Non-Refoulement Claims Petition Office” as both the putative respondents and the putative interested parties in Form 86, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

4.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, he would be killed by his uncle. He claimed that the uncle had gifted him a motorbike which was out of service and a complete wreck. He repaired the motorbike and sold it for 5 million Indonesian Rupiah (equivalent to approximately HK$2,460). He could not return the motorbike upon the uncle’s request, and hence he left his hometown to avoid his uncle.

Withdrawal of the Leave Application

8.  Before the Leave Application was dealt with, the applicant filed an affirmation dated 21 August 2025 to withdraw the Leave Application.

9.  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.

10.  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.

11.  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.”

12.  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

13.  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).

14.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 28 January 2025. The applicant merely stated in the affirmation that he did not want to go back to Indonesia because his life would be in danger, his uncle would kill him as he had sold his motorbike.

Discussion

15.  First of all, the applicant’s claimed fear from his uncle had been duly 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.

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

18.  In assessing the applicant’s appeal, the Board held an oral hearing on 8 November 2024. The applicant was present and had an opportunity to present his case to the Board in person.

19.  After due consideration of the evidence and the oral testimony of the applicant, the Board found that apart from the alleged threatening calls, the applicant’s uncle had never inflicted any physical harm on the applicant or his family. The ill-treatment did not amount to torture nor attain a minimum level of severity. There was no evidence of state acquiescence and the alleged ill-treatment was unrelated to any of the Convention reasons. There was no concrete evidence that the uncle had strong intention to harm or kill the applicant or his family members.

20.  Based on extensive country of origin information (“COI”) and the evidence, the Board did not accept that reasonable protection from the Indonesian government and its authorities was not available to the applicant.

21.  The Board found that it would be difficult for the applicant’s uncle, who was a chef and only an ordinary citizen, to locate him in such a vast country with such a large population. It was only the applicant’s mere speculation that his uncle knew a lot of people. The Board considered that it was unlikely that the uncle would mobilize resources in locating him for this tiny private matter.

22.  Moreover, the Board found that it would not be unduly harsh for the applicant, being an able-bodied young man with 12 years of formal education and certain years of work experience, to relocate to other areas in Indonesia to lower or negate the risk from his uncle should he return to his country.

23.  Thus, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

24.  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.

25.  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.

26.  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

27.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and 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

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