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

HCAL 226/2023

[2026] HKCFI 1310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 226 of 2023

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 Levy:

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Background

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 15 February 2023, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 2 February 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 22 November 2021 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000226_2023_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim was that, if refouled to Indonesia, he would be harmed or killed by the members of the Pemuda Pancasila, who mistakenly believed that the applicant was a member of the Communist Party in Indonesia.  The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.The applicant has requested for an oral hearing.  On 22 September 2025, the applicant filed an affirmation for the withdrawal of the Leave Application, deposing that his problem at home had been resolved and that it was safe for him to return home.  In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

4.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The applicant’s Form 86 contained no such grounds. In the supporting affirmation, the applicant alleged that the Board did not accept the untranslated documents to support his claim, and that the interpreter at the hearing before the Board refused to help with the translation.

6.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[3] In the present case, whilst the Board did not doubt the applicant’s credibility, it however found that the applicant would not face a real risk of harm if refouled.  This was because the alleged threat from the PP members was only a misunderstanding and that it was unlikely for the applicant to suffer any severe ill-treatment or serious harm if refouled.  It further found that state protection and internal relocation were reasonably viable.  These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.  

7.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise.  The supporting affirmation only contained bare assertions without any particulars.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].

Withdrawal application

8.Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action.  In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Recent Removal

9.On 16 January 2026, before the applicant was removed, he signed a standard form document addressed to the court, stating that he “chose not to provide any correspondence address for communication with the court and service of court documents.”

Order

10.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 11^th day of March 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