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HCAL 627/2023
[2026] HKCFI 3084
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 627 of 2023
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BETWEEN
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Hendrawan |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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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 (Ord 53 r 3)
Following;
Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:
1. The Applicant’s Form 86 be amended to name only the TCAB as the putative respondent and only the DOI as an interested party; and
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 filed on 28 April 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 13 February 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 1 March 2022 in refusing the Applicant’s non-refoulement protection claim. He named the TCAB and the Immigration Department as the proposed respondents as well as interested parties.
2. I amended the Form 86 on my own motion to name only the TCAB as the putative respondent and only the DOI as an interested party.
3. The Applicant did not request for a hearing and this application is to be dealt with on paper.
Background
4. The Applicant is a national of Indonesia. He seeks non-refoulement protection on the basis that if he was returned, he would be harmed or killed by members of a triad group seeking revenge for an altercation he had with one of their members. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.
Discussion
5. In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).
6. In the Form 86 and his affirmation filed in support of this application, the Applicant did not point to any particular error of law, procedural unfairness or irrationality of the TCAB Decision.
7. Looking at the TCAB Decision, the TCAB bore in mind the correct legal principles in respect of the nature of the appeal before it, the four applicable grounds under the USM, state protection, internal relocation and assessment approaches [14-32].
8. The TCAB also took into consideration the Applicant’s case and evidence, including the relevant Country of Origin Information and his testimony at the hearing before it [33-75, Appendix].
9. After thorough analysis and assessment, the TCAB came to the findings and conclusions that none of the Applicant’s allegations was made out and that state protection was available to him [76-114].
10. As for the four applicable grounds, the TCAB also came to the findings and conclusions that none was made out [129-147].
11. The TCAB further found and concluded that internal relocation would be in any event available to the Applicant [115-128].
12. I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.
Conclusion
13. For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.
Dated the 4th day of June 2026
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(Cheung Ho Yat, Annson)
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 to the Applicant on 4 June 2026
Hendrawan
Applicant’s ref. no.:
Nil. |
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Sent 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 4 June 2026
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 20023
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2860/21 (formerly RBCZ 5000364/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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