Case Document

100%Judiciary

HCAL 3784/2019

[2025] HKCFI 1586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3784 of 2019

BETWEEN
	Kuncoro	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; (2) the date of the decision in respect of which relief is sought be amended to 6 December 2019; and (3) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 19 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 6 December 2019 (the “Board’s Decision”)[1].

2.In the Form, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents, and the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form accordingly on the court’s own motion.

3.The Applicant had requested an oral hearing for the application. The hearing took place on 14 March 2025. The Applicant attended the hearing in person. When asked by the Court whether he had anything to say bearing in mind that he had not stated any grounds in support of the Leave Application either in the Form or in the supporting Affirmation, the Applicant indicated that he had nothing to say.

Background

4.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details 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[2] for reference.

Discussion

5.The applicable legal principles relating to application of this sort are well established. The role of the Court 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 §14)

6.In the Form, the Applicant did not state any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant simply stated that he was not satisfied with the Board’s Decision and attached the Board’s Decision.

7.I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board had analyzed the evidence given by the Applicant and his credibility in details (see paragraphs 8 to 56 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review and the Leave Application is hereby dismissed.

8.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.

Conclusion

9.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 22^nd day of April 2025.

	(Allen LEE)
	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 the Applicant’s 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 to the Applicant on 22/4/2025 Kuncoro Applicant’s ref. no: Nil		Sent 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 22/4/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 14279/18/11/122/I1537 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3913/18 (formerly RBCZ 10643/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] In the Form, the Applicant stated that the decision in respect of which relief is sought was dated 26 April 2019. This was clearly a mistake. The Board’s Decision was dated 6 December 2019, and 26 April 2019 was the date of the hearing before the Board. I accordingly make an order to amend the date on the Form on the court’s own motion.

[2] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003784_2019_files/the_Board's_Decision.pdf

Cites 3 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration