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

HCAL 63/2023

[2026] HKCFI 4659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 63 of 2023

BETWEEN

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) Isaac Chan:

1.  The Form 86 be amended to change the date of the subject decision from 18 January 2021 to 30 November 2022.

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

Observations for the Applicant:

1.By a Form 86 filed on 16 January 2023 (“Form 86”), the applicant applied for leave to apply for judicial review against the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) in respect of a decision dated 18 January 2021 purported to be the decision of the Board.

2.In the affirmation in support, the applicant exhibited the said decision, which was in fact the decision by the Director of Immigration (“Director”). However, the applicant did make certain complaints against the adjudicator of the Board in relation to the process of the appeal hearing (to be detailed below).

3.At the hearing on 13 May 2026, I inquired with the applicant as to whether he wanted to apply for leave to apply for judicial review against the Board’s decision dated 30 November 2022 (“Board’s Decision”)[1], which confirmed the decision of the Director dated 18 January 2021 and rejected the applicant’s non-refoulement claim. The applicant responded affirmatively.

4.As such, on the court’s own motion, I order the Form 86 be amended to revise the date of the Board’s Decision from 18 January 2021 (which was the date of the Director’s decision) to 30 November 2022, which was the proper date of the Board’s Decision.

5.I refer to the Board’s Decision for the background of the applicant, the basis of the claim, the evidence and the argument the applicant has relied upon, which will not be repeated herein.

6.The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board. However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14.

7.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.

8.The present application for leave 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 paragraph 23. I will therefore provide brief reasons for my decision as follows.

Discussion

9.In the affirmation in support of the Form 86, the applicant has set out the following complaints:

9.1.  The adjudicator of the Board did not consider her claim. The adjudicator directly dismissed it without taking time or thinking about his life.

9.2.  The applicant submitted some documents in his mother language but the adjudicator did not accept because he could not understand.

9.3.  The applicant requested some time to translate the documents into English and to prepare but the officer had no time.

9.4.  The translator did not help him at all. If he did not understand, the translator became angry.

9.5.  The interpreter asked him to not take long time for interview as he had another job.

10.At the hearing on 13 May 2026, the applicant made no submissions to supplement the documents filed in support of the application under the Form 86. Instead, he reiterated his wish not to be repatriated to Indonesia as he had so many problems there.

11.Applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision.

12.As apparent from the Board’s Decision, the applicant’s non-refoulement claim was reassessed comprehensively. The allegation that the Board did not consider the applicant’s claim, directly dismissed it without taking time or thinking about her life is baseless.

13.The Board’s Decision has, with respect, correctly and comprehensively set out the applicable legal principles. I do not see any errors in either the summary or the application of those legal principles.

14.The Board’s Decision has also set out the procedural history of the applicant’s non-refoulement claim, including the details of the two hearings before the Board on 12 August 2021 (which was quickly adjourned because of the applicant’s lateness, his suggestion that he had not received the hearing bundle, and the interpreter’s other appointment) and 17 December 2021 respectively (see paragraphs 41 to 49 of the Board’s Decision).

15.In paragraphs 43 to 46 and 48 to 49 of the Board’s Decision, it was recorded that the applicant fully understood the procedure, indicated that he was ready to proceed. He further confirmed (i) receipt of the hearing bundle, (ii) the truth and correctness of all his evidence in the bundle, (iii) adoption of all evidence given to the Immigration Department including his interview record as evidence in the appeal hearing without need to delete, alter or amend, (iv) that he had no comments on the COI quoted by the Director in his decision, (v) that he had no additional statement or documents to submit to the Board, (vi) the truth and accuracy of his evidence given at the oral hearing, and (vii) that he had no submission at the said hearing. Such summary directly contradicted the applicant’s complaints against the adjudicator and the interpreter. In the complete absence of any particulars, such complaints have no substance and are unarguable.

16.After a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board rejected the applicant’s case regarding the fear of harm by two loan sharks, as the applicant’s evidence was unsupported by documentary proof and contained significant differences (especially on monthly interests and the repayment to the loan principle) between the version given to the Immigration Department in February 2020 and the version to the Board in December 2021 while the material events only took place in 2019 (see paragraphs 59 to 64 of the Board’s Decision). In any event, the Board took the view that, based on the information given by the applicant, the feared harm from the loan sharks was not as imminent and substantial as the applicant asserted (see paragraphs 74 to 76). Also, state protection would be available, and internal relocation would be possible and not unduly harsh (see paragraphs 94 and paragraphs 104). The Board concluded that the applicant has failed to establish the proscribed risks. Based on the available materials, the conclusions of the Board were clearly justifiable. I do not see any basis to suggest that the Board was irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.

17.I therefore dismiss the application for leave to apply for judicial review under the Form 86.

Dated the 17^th day of August 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