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

CACV 743/2025, [2026] HKCA 703

On Appeal From [2025] HKCFI 4051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.743 OF 2025

(ON APPEAL FROM HCAL NO. 2325 OF 2020)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court)  :

Introduction

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K.W. Lung (“Judge”)  dated 5 September 2025[1]striking out his application for leave to apply for judicial review of the decision of the Director of Immigration (“Director”)  dated 13 November 2020 (“Director’s Decision”)  rejecting his non-refoulement claim.

Background

2.  The Applicant is a national of Indonesia.  He lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, he would be harmed or killed over his unpaid loan.  His non-refoulement claim was rejected by the Director’s Decision.  He did not lodge any appeal against the Director’s Decision to the Torture Claims Appeal Board (“Board”).

3.  On 26 November 2020, the Applicant filed a Form 86 to apply for leave to judicially review the Director’s Decision.  No respondent was identified in the Form 86 and the Board was stated to be an interested party.  The Judge, after hearing the Applicant, struck out his application for leave.  The reasons stated in the Form CALL-1 dated 5 September 2025 are as follows :

“3. Section 37ZR of the Immigration Ordinance (“the Ordinance”)  provides:

‘A person aggrieved by a decision of an immigration officer may appeal to the [Board] if the decision is made in respect of the person under—

(a)  section 37ZE(4)  or 37ZG(5)  (decision not to re-open a torture claim);

(b)  section 37ZI(1)(b)  (decision rejecting a torture claim); or

(c)  section 37ZL(1)  (revocation decision made by an immigration officer).’

4. The Court of Appeal in Re Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018 held:

‘42. The board may confirm or reverse the decision of the immigration officer but “must give its decision with reasons in writing.” The board’s decision is final.

43. It is clear that what is provided for by the Immigration Ordinance is a two tier administrative structure for the processing of torture claims.  The first tier is by an immigration officer and the second tier by a member of the board who will often, if not usually, be a legally qualified person and may be a former judge or magistrate.

45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing.  For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

5. This application is therefore an abuse of the ‘administrative structure’ provided by the Ordinance without good reason and should be struck out.”

Grounds of Appeal

4.  By a Notice of Appeal filed on 15 September 2025, the applicant seeks to appeal the Judge’s decision to this Court.  For the grounds of appeal, the Applicant states that :

“I am disagree with the decision maker authorities. The decision made by the Director of Immigration, As well as the decision made by the Adjudicator of the Torture Claim Appeal Board. There is no proper investigation in my claim. My life still in danger in my home land.” (sic)

5.  In the Applicant’s skeleton argument lodged on 16 March 2026, he argues that :

(1)  the Director had failed to appreciate or attach proper importance or weight to the presence of state acquiescence in his case;

(2)  the Board acted unreasonably and with procedural unfairness by placing too much reliance on the Country of Origin information (“COI”)  but failed to take into account his personal background and experience;

(3)  the Director failed to place sufficient weight on the COI which supported the fact that the police in his country would not be able to protect him.

6.  At the hearing, the Applicant said that he now has a wife and a child who is attending school in Hong Kong.

Legal Principles

7.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

8.  The assessment of evidence, COI, 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 or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. 

Discussion and Disposition

9.  In this case, the Applicant has advanced some arguments against the Director’s Decision which are devoid of particulars.  He also made allegations against a non-existing decision of the Board.  It is quite apparent that the Applicant has blindly relied upon cut and paste materials. 

10.  As provided under s.37ZR of the Immigration Ordinance, Cap 115 (“Ordinance”), it was open to the Applicant to appeal against the Director’s Decision to the Board, but he did not do so.  He had not exhausted all the alternative remedies before seeking to invoke the supervisory jurisdiction of the High Court by way of judicial review.  The Judge correctly pointed out that the Applicant’s attempt to circumvent the appeal process before the Board was an abuse of the two-tier administrative structure under the Ordinance.  We are unable to see any reason why the Applicant should be allowed to bypass this statutory appeal process and apply to the High Court directly for leave to apply for judicial review of the Director’s Decision (see Yuliani v Director of Immigration [2022] HKCA 1831, [24]).

11.  In any event, the matters set out in the Applicant’s Notice of Appeal and skeleton argument do not identify any error on the part of the Judge.  They lack substance and do not constitute any viable grounds of appeal.  We see no basis to interfere with the Judge’s decision.

12.  The applicant’s appeal is devoid of merits. Accordingly, we dismiss the appeal with no order as to costs.