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

HCAL 618/2023

[2026] HKCFI 5586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 618 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) Sabrina Ho:

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 27 April 2023 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 20 April 2023 (the “Board”, the “Board’s Decision”).

2.In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant raised various grounds in support of her Leave Application, see below.

3.The Applicant requested an oral hearing for the Leave Application, which took place on 18 June 2026 (the “Hearing”). At the Hearing, the Applicant said that he does not have anything to add orally.

Background

4.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

5.In the Affirmation in support of the Leave Application, the Applicant raised some grounds in support of the Leave Application. I will summarise them below:

a.  The Director of Immigration (the “Director”) did not consider the Applicant’s claim. Anyone who had consider his claim would have granted it;

b.  The Director had only one job and that is to dismiss the Applicant’s claim;

c.  Some documents submitted by the Applicant were in his mother language and the Director did not accept them;

d.  The Applicant requested time to be granted for translation but the officer failed to grant such time.

6.The relevant legal principles are well established. 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. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, 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, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para 14; Re Limbu Birkhaman [2019] HKCA 50 at para 11. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

8.I have reviewed the Board’s Decision in detail. The Board had fully considered the Applicant’s evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulement protection. While accepting the Applicant’s account that he had an affair with a married woman, the Board found that the harm suffered by the Applicant in the past does not attain the minimum level of severity required for international protection. This would be an indication that he would not be subject to harm to the requisite level if he returns to Indonesia. Overall, the Board considered the Applicant’s risk of harm by Yanto (due to the Applicant’s affairs of Yanto’s wife) is low: see the Board’s Decision paras. 38-47. The Board also found that the Applicant would have sufficient state protection and would be able to internally relocate within Indonesia: see the Board’s Decision paras. 47-55. The Board therefore found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if he returns to Indonesia and rejected the Applicant’s appeal: see the Board’s Decision paras. 56-62. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

9.The Board has confirmed the Director’s Decision dated 28 October 2021 in the Board’s Decision: see para. 62. For the reasons explained in paragraph 8 above, I do not consider there to be any merits in the Applicant’s complaints against the Director in the Affirmation.

10.Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para 23. I have considered all the relevant materials in reaching the present decision.

Conclusion

11.For the reasons stated above, I will dismiss the Leave Application.

Dated the 9^th day of October 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