RE AGUS WAHYUDI

CACV 40/2026, [2026] HKCA 484

On Appeal From [2026] HKCFI 210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 40 OF 2026

(ON APPEAL FROM HCAL NO 585 OF 2021)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Jeffrey Chau (“the Judge”) given on 13 January 2026[1] refusing his application for leave to apply for judicial review against the decision dated 14 April 2021 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed his appeal against the decision dated 21 January 2020 of the Director of Immigration (“the Director”) which had in turn rejected the applicant’s non-refoulement claim having regard to the torture risk[2] , BOR 3 risk[3] , persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of Indonesia born in 1983. He came to Hong Kong in 2019, but overstayed. He was arrested in November 2019, and subsequently made a non-refoulement claim. His claim was made on the basis that if he returned to Indonesia, he would be harmed or killed by a moneylender (“Burhanudin”) and his people over a monetary dispute. Details of the applicant’s background, the basis of his claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal have all been set out in the Board’s decision[6] : see [4] of the Form CALL-1. After considering the documents filed by the applicant in support of the application for leave to apply for judicial review, in which the applicant simply repeated the basis of his claim in his affirmation (that he could not pay his debt and loan sharks would kill him) without specifying any ground for judicial review, the Judge dismissed the application for reasons stated at [7]-[10] of the Form CALL-1. We will not repeat them here.

Appeal to this Court

3.  On 16 January 2026, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were essentially that (1) the Judge treated the leave application as a full merits review; (2) the Judge failed to give proper weight to the applicant’s unrepresented status and lack of legal knowledge and language ability; (3) on the issue of state protection, there was a failure to apply the correct legal test and engage with the applicant’s specific evidence; (4) on the issue of internal relocation, there was no proper analysis of safety and reasonableness; (5) the Board applied the wrong severity thresholds in relation to torture risk and wrongly assessed the future risk to the applicant; (6) the Board wrongly rejected family reports as hearsay evidence.

4.  The applicant has lodged written submissions in which he expanded on the grounds in the Notice of Appeal. We will deal with these in more detail below.

5.  At the hearing, the applicant indicated that he had nothing further to add to the written materials lodged.  

Discussion

6.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

7.  It is well-established that the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

8.  On the issue of state protection, the Notice of Appeal says that there was a failure to apply the correct legal test and engage with the applicant’s specific evidence. The applicant’s written submissions further submitted that (a) the Board wrongly treated the fact that the perpetrator (of violence) was a non-state actor and that the applicant left Indonesia on his own passport as “almost conclusive” that s.37U of the Immigration Ordinance and BOR 3 were not engaged, (b) the Board should have asked whether, had the applicant gone to the police, there was a real risk that they would not have provided effective protection, and whether any failure to protect him would have amounted to consent, acquiescence or lack of due diligence, but instead, the Board assumed that he would be protected.

9.  We note that the Board was alive to the test that an appellant would have no reasonable expectation of state protection in the event of harm or threats by a non-state actor, if the acts of harm had been knowingly tolerated by the authorities or if the authorities refuse or prove unable to offer effective protection. The Board then went on to consider whether, despite the fact that Burhanudin and his associates were non-state actors, the applicant would receive state protection. We therefore do not agree that the Board treated the fact that Burhanudin was a non-state actor to be “almost conclusive” that s.37U of the Immigration Ordinance and BOR 3 were not engaged. The fact is that the applicant did not even approach the police, so he could not say that the police did not provide him with assistance.  The Board was aware of the applicant’s concern that he did not trust the police, but it considered, based on the country of origin information, that there were objective indications that the Indonesian government had taken steps to monitor the conduct of the police force, and that there was no reason why the police would not have helped the applicant. We therefore do not agree that it is reasonably arguable that the Board simply made an assumption that he would be protected.

10.  On the issue of future risk of harm, the applicant complained that the Board wrongly applied a test of whether it was “probable” that harm would occur, rather than asking whether there was a real chance that it would occur, and submitted that the accepted history of repeated threats and violence, motivated by a large unpaid debt, was a strong indicator of future risk. However, what the Board found was that whilst the applicant had received personal threats and had been physically and verbally assaulted on some occasions, (1) had Burhanudin really wished to seriously harm or kill him, he had had ample opportunity to do so but at most, he caused the applicant physical harm to a minor extent, (2) the applicant had not sought medical treatment for his injuries and there was no other evidence to suggest that his injuries met the required threshold, (3) after leaving his home area, the applicant lived in other parts of Indonesia for around four months without incident , (4) there was no evidence that Burhanudin had a gangster network available to track down the applicant. We therefore do not consider that it is reasonably arguable that the Board applied the wrong legal test.

11.  As for the applicant’s complaint that it was unfair and irrational for the Board to treat reports from his family as hearsay evidence, the assessment of evidence is within the province of the Board. The Board considered that there was no corroborative evidence of the applicant’s claim that family members had said that Burharnudin still wanted to harm the applicant, and therefore discounted the hearsay evidence relating to these family members. This was an assessment of evidence which the Board was entitled to make, and we can see no arguable case that the Board erred in law in so doing.

12.  On the issue of internal relocation, we would first point out that since the applicant failed to make out his case on any of the available grounds, it was not strictly necessary (as the Board observed) to address the option of internal relocation. The applicant acknowledged before the Board that his problems with Burhanudin were localised. The Board noted that Burharnudin’s associates had to resort to asking the applicant’s family members as to his whereabouts, casting doubt on the suggestion that Burharnudin had a gangster network available to track down the applicant throughout the country. Furthermore, the applicant had lived in various locations around Indonesia without anyone locating him. In the circumstances, we do not agree that it is reasonably arguable that the Board failed to assess how debt-collection gangs used networks to trace debtors in other parts of the country, or that the Board failed to consider the applicant’s personal situation and simply named other cities in Indonesia for possible relocation.

13.  As regards legal knowledge and language assistance, the applicant was assisted by the Duty Lawyer Service in completing his claim form which set out the details in support of his non-refoulement claim. He also indicated at that stage that he had legal representatives to assist him in making his claim. His claim form was interpreted to him before he signed it to signify that he had set out all facts and grounds for seeking non-refoulement protection. These materials were available to the Judge. The applicant also had the assistance of an interpreter at the hearing before the Judge. In any event, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process. The high standard of fairness required by law does not entail an interpretation service made available to an applicant at all times as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  In the circumstances, we do not see that it is reasonably arguable that the Judge erred in not giving proper weight to the applicant’s unrepresented status, lack of legal knowledge or language ability. As to the appeal before us, the applicant asks us to take into account the fact that he has done his best to put his case in writing but may not have expressed it clearly at an earlier stage. It would appear from the Notice of Appeal and the written submissions that the applicant received legal and language assistance in their preparation. They advanced legal arguments in some detail. We have given due consideration to these.

14.  Finally, we do not agree with the complaint that the Judge treated the leave application as a full merits review. The Judge considered whether the applicant’s intended challenge the Board’s decision was reasonably arguable.

15.  As the applicant has not demonstrated any error in the decision of the Judge or advanced any viable ground of appeal against the Judge’s decision, we dismiss the appeal.

[1] [2026] HKCFI 210.

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] https://legalref.judiciary.hk/doc/ judg/html/vetted/other/ en/2021/HCAL000585_2021_files/ the_Board's_Decision.pdf