Sumarlan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1065/2025

[2025] HKCFI 4830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1065 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 December 2024 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 18 March 2025. His application was filed on 7 May 2025, which is late for more than one and a half months.  This issue will be dealt with below.

2.The applicant did not ask for a hearing.

The applicant

3.The applicant is a national of Indonesia. He is an illegal immigrant for the reason that he came to Hong Kong as a visitor, but he overstayed since 29 September 2023. He was arrested by police on 25 October 2023. He lodged a non‑refoulement claim on the basis that, if refouled, he will be harmed or killed by his ex-father-in-law because he had divorced his wife. His ex-father-in-law threatened to hire people to kill him.

4.Details of the applicant’s story can be found in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001065_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.The Director, by Notice of Decision dated 4 October 2024, (“the Director’s Decision”), refused the applicant’s claim for the reason that it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 28 November 2024, the Board conducted an oral hearing. He had given oral evidence and answered the Board’s questions.

8.Having considered the evidence and materials, the Board found the facts below.

(1)   His allegations were bare assertions without any object proof on the alleged threats. [19] & [35]

(2)   The alleged threats were not imminent as he did not submit his non‑refoulement claim in August 2023, the first opportunity he arrived in Hong Kong, but only did so in December 2023 after he was arrested by police. [37]

(3)   There was no evidence that the state was involved. [39] & [54]

(4)   State protection will be available if he returns to Indonesia. [47]

(5)   The threats, if any, originated from a private dispute and internal relocation is viable. [55] & [88]-[93]

9.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 7 May 2025 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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.”

15.The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

16.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 22^nd day of October 2025

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