AHAUZI FATKHULLOH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 171/2022

[2026] HKCFI 1409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 171 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 2 March 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”). As stated in the Form, the decision which the Applicant wishes to challenge is the Decision of the Director of Immigration dated 6 May 2021 (the “Director”, “Imm Decision”). The Applicant named both the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) and the Director as the proposed respondents and the Board as the interested party.

2.  In the Affirmation filed by the Application in support of the Leave Application (the “Affirmation”), the Applicant stated that she wishes to seek leave for judicial appeal against the Imm Decision and exhibited a copy of the same.

3.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on (the “Hearing”) but the Applicant was absent. Notice of Hearing was issued to the Applicant in advance at the Applicant’s address provided by the Immigration Department on 17 December 2025. The said Notice has not been returned as undelivered.

4.  On 23 January 2026 and 29 January 2026, attempts were made to contact the Applicant by phone at the Applicant’s number provided by the Immigration Department but in vain. I take the view that sufficient notice had been given to the Applicant in respect of the Hearing. I will proceed with the Hearing in the absence of the Applicant.

5.  The Imm Decision is not susceptible to judicial review as it has been superseded by the Board’s Decision once an appeal against it to the Board has been pursued by the Applicant: see Re Moshin Ali [2018] HKCA 549 at para 45. For this reason alone, the Leave Application should be dismissed.

Even if the Leave Application were to cover the Board’s Decision, it would be dismissed

6.  Solely for completeness, even if the Applicant had intended the Leave Application to cover the intended judicial review against the Decision of the Board dated 6 January 2022 (the “Board’s Decision”), I would have rejected the application on the merits as explained below.

7.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

8.  The Applicant has not identified any ground in support of the Leave Application, whether in the Form or the Affirmation.

9.  The relevant legal principles are well established. The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para 14. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

10.  Having considered all the relevant materials before me, I do not consider any intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

11.  The Board had considered the Applicant’s evidence and his grounds for challenging the Imm Decision. The Board found that even assuming the Applicant’s factual assertions were true, reasonable state protection and internal relocation options would be available to the Applicant if he returns to Indonesia: see the Board’s Decision paras 35-48. On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if he returns to Indonesia and rejected the Applicant’s appeal: see the Board’s Decision paras 49-53. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

12.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para 23. I have considered all the relevant materials in reaching the present decision.

Conclusion

13.  For the reasons stated above, I will dismiss the Leave Application.

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