Re Musleh

CACV 798/2026, [2026] HKCA 1848

On appeal from [2026] HKCFI 3973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 798 OF 2026

(ON APPEAL FROM HCAL NO. 1660 OF 2025)

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REASONS FOR JUDGMENT

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Hon K Yeung JA (giving the Reasons for Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung dated 21 July 2026[1] (the “Judge” and the “Judge’s Decision”) refusing his application for leave to apply for judicial review.  The intended judicial review was against the decision dated 30 June 2025 of the Torture Claims Appeal Board (the “Board” and the “Board’s Decision”) dismissing his appeal against the decision dated 28 March 2025 of the Director of Immigration rejecting the applicant’s non-refoulement claim (the “Director” and the “Director’s Decision”).

2.The applicant did not turn up for the appeal hearing.  This Court dismissed his appeal.  Below are the reasons.

Background

3.The applicant is a national of Indonesia born in 1982.  He first arrived in Hong Kong on 12 November 2023 as a visitor.  He was permitted to stay until 12 December 2023.  He did not depart as required and overstayed from 13 December 2023.  He was arrested on 16 October 2024.  On 26 October 2024, he lodged a non-refoulement claim with the Immigration Department.  His claim was assessed on all risks: torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk.  His claim was made on the basis that if refouled to Indonesia, he would be harmed or killed by a moneylender named “Marzuki” and his subordinates who had threatened to kill him for an unpaid loan.  He claimed that the loan was taken out by his business partner “Mochtar” who had since vanished with the money, leaving the applicant in debt.

4.The Board set out in the Board’s Decision details of the applicant’s background, the basis of his claim, and the Board’s reasons for rejecting his appeal[6].  In gist, the Board found the applicant not credible.  His oral testimony repeatedly contradicted his written claims[7]. He gave inconsistent accounts of whether he had repaid any sums, and changed his evidence multiple times regarding his travel plans, his siblings’ contacts and the loan arrangements[8]. The Board also found it improbable that he did not know the loan terms despite the large sum involved[9]. Even accepting his account, the Board found on the basis of the country of origin information (COI) that the applicant could reasonably relocate within Indonesia to avoid Marzuki who lacked the network to locate him[10]. Consequently, the Board concluded that the applicant had failed to substantiate his claim for protection under any applicable grounds.

5.By a Form 86 filed on 23 July 2025, the applicant applied for leave to seek judicial review of the Board’s Decision.  He did not raise any specific ground for seeking relief in his Form 86.  In his supporting affirmation, he requested a chance to talk to the adjudicator.  He did not request for an oral hearing.  By a Form CALL-1 dated 21 July 2026, the Judge dismissed his application.  In gist, the Judge found that the applicant did not raise any ground to challenge the Board’s Decision but merely requested a chance to talk to the adjudicator – which was not a valid challenge against the Board’s Decision, such that the intended judicial review had no realistic prospect of success.

Appeal to this Court

6.On 3 August 2026, the applicant filed a Notice of Appeal against the Judge’s Decision.  He does not set out any grounds of appeal but only states that:

“I would like to reject and review the Decision made By of Court and the TCAB.  They Disregard my Dangerous Situation.”

7.The applicant lodged written submissions on 9 September 2026.  He repeats therein the basis of his claim, his background and his account of the events which he claims led to his escape to Hong Kong.  He reiterates that the loan shark could locate him easily within Indonesia and that he is unable to repay the debt.

Discussion

8.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

9.Further, it is well-established that assessments of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  

10.The applicant’s repeated assertion that his life is in danger due to the unpaid loan from Marzuki cannot stand in the light of the Board’s rejection of the factual basis of his claim on credibility grounds.  Both before the Judge and in this appeal, the applicant has not advanced any arguable ground to challenge the Board’s factual findings, which the Board was entitled to make based on the evidence it received and for the reasons it gave.

11.Further and importantly, the applicant did not identify any error in the Judge’s Decision.  Having considered the materials before us, we agree with the Judge that the intended judicial review has no realistic prospect of success and that leave to apply for judicial review should be refused.  The applicant’s appeal has no merit.  We dismiss the same.

The applicant, unrepresented, acted in person.

[1]  [2026] HKCFI 3973.

[2]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]  This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]  This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6]  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001660_2025_files/the_Board's_Decision.pdf

[7]  §§17 to 33 of the Board’s Decision.

[8]  §§20 to 31 of the Board’s Decision.

[9]  §32 of the Board’s Decision.

[10]  §§35 to 44 of the Board’s Decision.