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

HCAL 1170/2023

[2026] HKCFI 4601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1170 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) Val Chow:

1.  Form 86 be amended on the court’s own motion that the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 13 July 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 29 June 2023 (the “Board’s Decision”).

2.To ensure that the proposed respondent is properly named, I make an order to amend the Form 86 accordingly on my own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 27 July 2026 (the “Hearing”) and the Applicant attended in person.

Background

4.Retail retails concerning the Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in the Board’s Decision,  a hyperlink to which is included below[1] for reference. In short, the Applicant came from Indonesia. He fears that he will be killed by members of his family if he returns to his home country because he converted to Catholicism from Islam.

Discussion

5.The leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23. Hence, I shall set out my brief reasons hereinbelow.

6.It is well-established that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which this court will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

7.An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (unreported, 22 December 2016) per Chow J (as he was then) at §142. Where a Form 86 contains only general assertions without particulars as to underlying facts or matters upon which the Board’s Decision is said to be erroneous, such assertions are not effective grounds to support a judicial review, see: Re Haider Khalil [2021] HKCA 223 at §16.

8.In his affirmation in support of the Leave Application, apart from repeating his claim that his life will be in danger if he returns to Indonesia, the Applicant complained that he did not have a fair hearing before the Board:-

(1)  The Board rejected documents in Indonesian which were produced by the Applicant (the “Alleged Documents”) and did not give the Applicant time to arrange for translation of the Alleged Documents.

(2)  The interpreter at the hearing before the Board was impatient and the Applicant did not understand the proceedings.

9.In my view, the Applicant’s complaint about language difficulties is devoid of merits:-

(1)  The grounds of review advanced by the Applicant were taken from a generic template. They are vague and unparticularised and make no reference to the underlying circumstances. For example, the Applicant has failed to identify what the Alleged Documents were and how they relate to his case. Similarly, the Applicant has failed to elaborate on how the quality of interpretation was poor and how it affected the presentation of his case and/or gave rise to unfair prejudice.

(2)  As noted by the Board’s Decision, the Applicant could speak some English (§41). The Applicant’s Notice of Appeal to the Board is written in English. This shows that the Applicant is reasonably fluent in English or he is able to obtain language assistance if needed.

(3)  In any event, the Applicant has not produced the Alleged Documents to date, despite the lapse of 3 years after the Form 86 was filed.

(4)  It is not apparent from the Board’s Decision that the Applicant has made any complaint about language or translation issues. There is no mention that any of the Applicant’s documents were rejected by the Board (§§8, 53-58). The Applicant was assisted by a qualified interpreter during the hearing before the Board (§7). He was also able to present his case and answer various questions posed by the Board without any indication of difficulty (see e.g. §§41-52).

10.At the Hearing, the Applicant confirmed that he had nothing to add to his application.

11.Having considered the Board’s Decision, I find no indication of reviewable errors on any of the recognized grounds which can give rise to a reasonably arguable case for judicial review. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

12.Plainly, the Board has given adequate reasons for its decision and has conducted a meticulous analysis of the evidence put before it. Amongst others, the Board was correct in finding that there is no evidence of any real risk of serious harm:-

(1)  The Applicant has not actually converted to Catholicism. The Applicant has not demonstrated that he had taken any step towards conversion. He has not learned about basic teachings of Catholicism and has not started the process of conversion such as getting baptised (§§46, 72, 92).

(2)  Having considered the Country of Origin information before it, the Board was entitled to take the view that Christians were generally able to practise their faith freely throughout Indonesia. Christianity is the second largest religion in Indonesia and about 24 million Indonesian considered themselves Christians in the 2010 census (§62). The risk of violence targeting Christians is low and conversion to and from Christianity is common (§§63-64). The conversion from Islam to another religion (i.e. apostasy) is not prohibited by local law (§§60, 75-78).

(3)  The Applicant’s claim that he faces danger from his family is only a bare assertion. The claim that the family will do serious harm to the Applicant is mere speculation not properly grounded in evidence (§79). In any event, the threat from his family is at best localised and reasonable internal relocation alternatives are available, it is clear that, the Applicant, as an able-bodied adult with reasonable education working experience, should have no difficulty relocating to places such as Jakarta. There is no evidence that his family would have the ability and determination to pursue the Applicant throughout Indonesia, which is a large country with substantial population (§§79-83, 88).

13.In such circumstances, the Board’s Decision satisfies the enhanced Wednesbury test and cannot be said to be irrational.

14.In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

Conclusion

15.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 21^st 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