SYAHRUL JANUAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1251/2021

[2026] HKCFI 2106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1251 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 the applicant being absent 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 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 12 August 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/HCAL001251_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 8 April 2021 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim, and confirmed the same.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, he feared harm from Binti, from whom he borrowed 150 million Indonesian Rupiah in 2019. The applicant claimed that he was threatened and harmed by Binti and her men when he was unable to repay the money. The applicant also claimed that his grandfather was a member of the Indonesian Communist Party of Partai Komunis Indonesia (“PKI”), and that resulted in the applicant being refused Government Insurance Subsidies in Indonesia (“BPJS”) and was asked on one occasion to pay a bribe. He also raised claims regarding the prevalence of COVID-19 in Indonesia.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 19 March 2026.

6.  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.

7.  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

8.  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).

9.  The applicant did not identify any ground for the intended judicial review in Form 86. In a document with the title “GROUNDS” that was annexed to his supporting affirmation dated 7 September 2021, the applicant advanced a few general grounds, which are summarized as follows:-

(1)  The Adjudicator and the Director did not believe his claim and did not pay any attention to his claim;

(2)  Relocation was not possible as the applicant’s enemy was strong, powerful and influential;

(3)  The Adjudicator did not give him enough time;

(4)  The Director had no clear decision;

(5)  The Adjudicator’s decision was not clear; and

(6)  Both the Director and the Board failed to show any good reason to reject his claim.

Discussion

10.  First of all, ground (4) as summarized above was directed at the Director. As 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), the Director’s Decision cannot be the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

11.  In ground (1), the applicant asserted that the Board did not believe his claim and did not pay any attention to his claim. However, the finding of facts in relation to a non-refoulement claim is solely within the ambit of the Board. This court cannot interfere with the Board’s fact-finding unless there are errors of law, procedural unfairness or irrationalities in such findings. The mere fact that the Board found no substantial grounds for believing that the applicant was at risk of any of the proscribed forms of harm under the USM did not mean that the Board had not considered his claims carefully, or that its conclusion was wrong in law and/or irrational.

12.  In ground (2), the applicant challenged that the Board’s finding on the viability of internal relocation. As can be seen from paragraphs 55 to 59, the Board had laid out its reasons for concluding that internal relocation was a viable and reasonable option for the applicant. The Board had also duly considered the applicant’s concerns regarding internal relocation. This court finds no flaw in the Board’s finding on the viability of internal relocation for the applicant.

13.  In ground (3), the applicant complained that the Board did not give him enough time. However, the applicant did not state for what the Board did not give him enough time, or what he could have done to substantiate his claim if he was given enough time.

14.  Finally, in grounds (5) and (6), the applicant complained that the Board’s decision was not clear and that it failed to show any good reason to reject his claim. Again, the applicant did not specify what aspects of his claim that the Board failed to address. In fact, the Board had given full and detailed reasoning in the Board’s Decision to conclude that every aspect of the applicant’s claim failed to substantiate a case for non-refoulement protection.

15.  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.

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

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, 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.

19.  Although the Board decided not to hold an oral hearing to determine the applicant’s appeal/petition, the Board did write to the applicant on 21 June 2021 and invited him to comment on the observations of the Board in relation to his claims. The applicant’s response given to the Board on 5 July 2021 had all been considered carefully.

20.  Further, the Board had explained in paragraphs 41 to 44 of the Board’s Decision the reasons for its decision to determine the applicant’s appeal/petition on papers. This court agrees with the Board that given the circumstances of the applicant’s case, it was not inappropriate for the Board to determine the applicant’s case without an oral hearing.

21.  With regards to the applicant’s claimed fear of harm from Binti, the Board had given full consideration to the applicant’s evidence but did not accept that the applicant would be pursued by Binti and her men upon his return to Indonesia. The Board considered that if Binti and her men had wished to seriously harm or kill the applicant, they had ample opportunity to do so during the several months the applicant essentially remained living in his home. The Board also found the facts that the applicant was able to return to his home, retrieve his motorcycle and sell it to finance his airline ticket to Hong Kong were indicative that Binti had minimal interest in pursuing or harming the applicant for the money he owed. Further, the Board was of the view that given the lapse of time since the applicant had left his home area, any residual interest that Binti had in harming the applicant due to his failure to repay the loan had dissipated.

22.  The Board had also considered the applicant’s claimed risk of harm or discrimination due to his grandfather’s connection with PKI. Although the board accepted that the applicant’s grandfather was killed due to his association with PKI, the Board found from country of origin information (“COI”) that there was no evidence that family members of PKI continued to be pursued past the 1980s or in more recent years. The applicant did not point to any other instances of discrimination or harm, apart from the request for a bribe on one occasion. Further, the applicant was able to enter university and his own evidence was that he only left Indonesia due to the loan shark issue. The Board was not satisfied that there was a real chance the applicant would suffer harm due to his grandfather’s association with PKI upon his return to Indonesia.

23.  The applicant’s claimed risk due to COVID-19 if he were returned to Indonesia was also examined by the Board. However, the Board found the likelihood that the applicant would suffer harm from COVID-19 to be speculative. Moreover, the applicant was also eligible to obtain a vaccine for COVID-19 in Hong Kong as an asylum seeker, which reduced the risks associated with the disease.

24.  As aforesaid, the Board had considered the viability and reasonableness of internal relocation for the applicant. The applicant had not provided any evidence to indicate that Binti had a level of power or influence that would enable her to locate the applicant outside his home area to pursue him in other parts of Indonesia. Given that freedom of movement was allowed, and given the applicant’s education, work experience and experience in living well away from his home area, the Board found that it would not be unreasonable or unduly harsh for the applicant to relocate to another part of Indonesia to reduce any risks to his safety from Binti and her men.

25.  Although the applicant’s wife and baby were not included in the applicant’s non-refoulement claim, the Board had also considered the applicant’s assertion that they would be harmed or killed by Binti. However, as the Board had not accepted that the applicant would be pursued by Binti and her men upon his return to Indonesia and he could safely relocate to another part of the country, the Board was also not satisfied that the applicant’s wife and child would suffer harm from Binti and her men in Indonesia.

26.  Thus, the Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the USM.

27.  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.

28.  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.

29.  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

30.  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