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

HCAL 585/2021

[2026] HKCFI 210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 585 of 2021

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 (Non-refoulement Claims) Jeffrey Chau:

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non refoulement Claims Petition Office as the Putative Respondent and 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 27 April 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 14 April 2021 (the “TCAB Decision”)[1], which affirmed the decisions of the Director of Immigration (the “DOI”) dated 21 January 2020.

2.I amend Form 86 on my own motion to name only the TCAB as the putative respondent and 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 that he had nothing to add.

Background

4.The Applicant is a national of Indonesia.  In gist, he claims that he lives in fear of a moneylender and gangster, Burhanudin, and his people who live in the Home Area and have threatened the Applicant in the past in relation to a money dispute.  The Applicant fears that Burhanudin and his people 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[2]. 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 stating in the supporting affirmation that “…[I applied for leave] because I can not pay my debt, from the loan sharks will kill me, I still want to stay in Hong Kong because I scared go back to my caontry [sic], the money lender will kill me and scared of thereats [sic] for them”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

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 [45-94].  It is notable that the TCAB accepted the basic facts the Applicant contended [41], but still found that the Applicant’s case failed in other respects [42-44].  Bearing in mind all the circumstances including the severity of the alleged injuries and the fact that Burhanudin was really a local moneylender, not state actors [54, 60, 77, 78.  See also 43(2)], the TCAB was plainly correct to have found that the Applicant would be afforded state protection [60, 61, 63] and it would not be unreasonable for him to relocate.  [82-90]. The grounds stated in his supporting affirmation is a mere regurgitation of matters that had already been fully considered by the TCAB, and in any event do not affect the cogency of TCAB’s reasoning.

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.

Dated the 13^th day of January 2026

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