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

HCAL 724/2021

[2026] HKCFI 214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 724 of 2021

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 the documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 20 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 12 May 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 24 December 2019.

2.  I amend Form 86 on my own motion to name the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same. When asked, he said he had nothing to add.

Background

4.  The Applicant was a national of Indonesia. In gist, he claims that he lives in fear of the son of a moneylender and his people who live in the Home Area and who have threatened the Applicant in the past in relation to an outstanding loan dispute. The Applicant fears that they would harm, ill-treat and/or kill him were he to be refouled to Indonesia. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink.[1] I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not state any grounds on which the relief is sought, other than that he stated in the supporting affirmation, “I don’t want to go back to Indonesia because I get death threats if I come back because I have a debt of 485 million and the people who lent me are constantly threatening to kill me because in Indonesia, I don’t have anyone else so I beg to be allowed to stay for a [illegible]”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [45-56, 63-82, 92-95]. In it pertinent to note that the TCAB accepted the basic facts the Applicant alleged [41], but still made adverse findings against him on the pertinent matters in the case, including (1) it was doubtful whether the Applicant would suffer serious harm given that the money lender and his people had the opportunity but did not do so before he left the country (2) that the problem was localised [43]. It is also plain that state protection were available [57-62] and internal relocation, viable [83-91]. The TCAB’s findings were nuanced and careful, and Applicant’s case was plainly hopeless. For completeness, the matters stated in his supporting affirmation have been dealt with comprehensively in the TCAB Decision.

10.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review 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