Baehaki v Torture Claims Appeal Board/

HCAL 85/2026

[2026] HKCFI 3874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 85 of 2026

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 Applicant being absent in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 December 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant was absent at the hearing on 24 June 2026. I shall deal with his application on the papers.

The applicant

3.The applicant is a national of Indonesia. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by his former employer, who suspected him to have love affairs with his wife.

4.Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000085_2026_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.By way of Notice of Decision dated 20 October 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 11 December 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

8.Having considered the evidence, the Board made the findings below.

(1)  On the issue of credibility of the applicant’s evidence, the Board remarked that “the applicant did not present himself as particularly believable or unbelievable, but demeanour is rarely very useful. His story is internally consistent as to the personal dispute with J.” [62]

(2)  On the above basis, the Board had made the following findings:

i.  State protection will be available if he returns to Indonesia; [109]

ii.  Internal relocation is available to the applicant; [110] and

iii.  The applicant failed to establish his claim on all the applicable risks. [112], [117], [119-124] & [133].

9.For the reasons above, the Board dismissed his 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 8 January 2026 for leave to apply for judicial review of the Board’s Decision.

11.In support of his application, the applicant has raised that the Board’s Decision was irrational; that the adjudicator did not give sufficient reasons for the Board’s Decision; and that his life will be in danger if he returns to Indonesia.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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 Board has said in its Decision that it was unable to determine the credibility of the applicant’s evidence by demeanour. It therefore relied upon the consistency of the applicant’s story. This approach is supported by the Court of Appeal in Re Hidayah [2018] HKCA 595:

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility … … Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.”

16.The applicant’s reasons under paragraph 11 are bare assertions without any evidence in support. They are not valid to challenge the Board’s findings.

17.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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

Dated the 21^st day of July 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