|
HCAL 1254/2021
[2026] HKCFI 2109
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1254 OF 2021
|
BETWEEN
|
| |
Surip |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
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 2 July 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/HCAL001254_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 23 January 2020 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection.
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 would be harmed or killed by a loan shark called Tuslam from whom he took out a loan of 200 million Indonesian Rupiah which the applicant was unable to repay.
Oral hearing
5. The applicant requested for an oral hearing and his case was heard on 19 March 2026.
6. When this court asked the applicant to elaborate on the grounds for the intended judicial review which were contained in his supporting affirmation dated 7 September 2021, the applicant merely mentioned some of the background facts of his case for non-refoulement protection.
7. When this court further asked the applicant what was wrong with the Board’s Decision, he said that there was nothing wrong with the Board’s Decision and he just followed the procedure here as he wanted to continue to stay here.
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 advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 7 September 2021, the applicant advanced a few general grounds under the heading “GROUNDS”.
10. The grounds contained therein are summarised as follows:-
(1) The applicant has life threat in his country;
(2) The Director and the Adjudicator rejected his claim by some “unwanted argument”;
(3) The Adjudicator did not pay any attention and did not give the applicant any opportunity; and
(4) The applicant did not agree with the Director and the Adjudicator.
11. As aforesaid, the applicant in fact agreed that there was nothing wrong with the Board’s Decision at the oral hearing.
Discussion
12. First of all, the applicant’s danger in his country had been fully 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. It does not help the applicant when he merely asserted that he did not agree with the Board’s Decision either. Thus, grounds (1) and (4) are not valid grounds for judicial review.
13. In ground (2), the applicant asserted that the Board rejected his claim by some “unwanted argument”. However, he did not specify what the “unwanted argument” was.
14. Similarly, the applicant complained in ground (3) that the Board did not pay any attention and did not give him any opportunity without any particulars. He did not state which aspects of his claim had the Board failed to pay attention to, or how the Board did not give him any opportunity.
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. 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, despite the fact that the applicant did not advance any valid grounds for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
18. In assessing the appeal by the applicant, the Board held an oral hearing on 31 July 2020. The applicant was present and was given the chance to present his case to the Board in person.
19. After due consideration of the evidence, the Board rejected the applicant’s claim as having no credibility at all. As can be seen from paragraphs 61 to 65 of the Board’s Decision, the Board found multiple significant inconsistencies in the applicant’s evidence and the explanations given by the applicant were illogical. The applicant also failed to provide any documentary proof of his debt or injuries sustained as a result of the alleged attacks by the creditor. The Board did not accept that the applicant was pursued, threatened and attacked.
20. Since the applicant’s evidence in relation to the loan and the attacks by the creditor was rejected in its entirety, the Board decided that the applicant’s appeal/petition against the Director’s Decision failed.
21. Nevertheless, the Board did go on to assess the applicant’s claim for non-refoulement protection on the assumption that his evidence were accepted. However, the Board still found that the applicant was unable to substantiate his case on all the applicable grounds under the USM.
22. The Board found that the applicant’s dispute with the creditor was a purely private monetary dispute and there was no evidence of state acquiescence. The injuries the applicant sustained did not amount to severe harm or suffering and did not attain the minimum level of severity. The applicant’s fear of the creditor was not for any Convention reasons.
23. Further, the applicant had never reported the acts of the creditor to the police or authorities in Indonesia. There was no evidence to support the applicant’s assertion that the police would not act on his request for assistance or that the creditor would harm his family if he reported the matter to the police. The Board found from reliable country of origin information (“COI”) that despite shortfalls, the government and police of Indonesia were both willing and able to offer assistance to the applicant should he need it upon refoulement.
24. With regards to the viability of internal relocation for the applicant, the Board found no evidence to support that the applicant’s creditor had the resources, power and influence to locate him anywhere in Indonesia. The Board found that it would not be unduly harsh or unreasonable for the applicant, being able-bodied with years of work experience, to relocate to other areas of Indonesia apart from his home area to further reduce or negate the threats from the creditor.
25. Thus, the Board concluded that the applicant had failed to demonstrate any real risk on all the applicable grounds under the USM.
26. 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.
27. 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.
28. 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
29. For reasons aforesaid, the Leave Application is dismissed.
Dated the 15th day of April 2026
| |
( Teresa NG )
for Registrar, High Court
|
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 his solicitors must:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 15 April 2026
Applicant’s ref. no:
Nil |
|
Sent/Handed 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: 15 April 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16759/20/2/37/I1825
Director of Immigration
Putative interested party’s ref. no.: QA T/C 975/19 (formerly RBCZ 10770/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|