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

HCAL 1793/2023

[2026] HKCFI 5785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1793 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) Keith Lam:

1.  Form 86 be amended, naming Torture Claim Appeal Board / the Non‑Refoulement Claims Petition Office 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 6 October 2023 (“Form 86”), the Applicant seeks leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) dated 21 June 2023 (“TCAB Decision”), which affirmed the decision of the Director of Immigration (“DOI”) dated 25 September 2020 (“DOI Decision”).

2.The Form 86 incorrectly named the DOI as the putative respondent. I therefore amend the Form 86 on my own motion to name the TCAB as the putative respondent.

3.The Applicant requested for a hearing of this application, which was held on 14 September 2026. When asked, he said he had nothing to add.

Background

4.The Applicant is a national of Indonesia. In gist, he fears that he will be harmed or even killed by the gangsters and/or the family of a person he killed in a car accident, and he also fears prosecution in Indonesia regarding the same car accident. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink.[1] There is no need for me to repeat the same. Unless otherwise specified, the abbreviations and descriptions used in the TCAB Decision are adopted herein.

Legal Principles

5.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

6.In a judicial review, this court does not provide a further avenue of appeal. While I remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinising the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

7.An applicant is required to clearly and succinctly identify the grounds of judicial review relied upon in the Form 86 and the supporting affirmation: Ho Loy v Director of Environment Protection, HCAL 21/2015 (unrep.) 22.12.2016 at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

8.Given RHC O 53 r 4(1) and s 21K(6) of the High Court Ordinance (CAP 4), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are: (i) the length of the delay; (ii) the explanation for the delay;[2] (iii) the merits of the substantive application;[3] (iv) prejudice; and (v) whether the application raises questions of general public importance.

(2)  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely.

(3)  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

See: Thing Sunil v TCAB [2025] HKCFI 4366, at §9, citing AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at §§23-36 and Thomas Lai [2014] 6 HKC 1 at §§43-45; H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44.

Discussion

9.The application by the Form 86 was out of time by 16 days. Such a delay is relatively short. When asked about the reason for the delay, the Applicant said that he did not know about the decision earlier. In light of my view below on the lack of merits of the leave application, I do not think it is necessary for me to base my decision on the delay and I will overlook it.

10.The Applicant stated the following grounds of judicial review in the supporting affirmation: -

(1)  “Adjudicator did not consider my claim. Adjudicator directly dismissed. He did not even take time or did not think about my life.” (“Ground 1”)

(2)  “I had some documents but all in my mother language. I submitted all but Adjudicator did not accept because he could not understand.” (“Ground 2”)

(3)  “I request him to give me some time to translate in English of my all documents and I too took some preparation but my officer had no time.” (“Ground 3”)

(4)  “Translator did not help me at all. If I did not understand he became angry.” (“Ground 4”)

(5)  “Interpreter asked me to not take long time for interview as he had another job.” (“Ground 5”)

(6)  “Please help me and safe my life.” (“Ground 6”)

11.I have scrutinised the TCAB Decision carefully and come to the view that none of the above Grounds can be established or considered as valid or effective public law grounds.

12.Most if not all of the grounds merely consist of generic, vague and/or unparticularised assertions without reference to any underlying facts or matters establishing why, how and where each of those complaints arise in relation to the TCAB Decision. General assertions without particulars are not effective grounds and cannot assist the Applicant: Re Haider Khalil [2021] HKCA 223 at §16.

13.Ground 1 is clearly not correct given that the TCAB Decision considered the Applicant’s evidence about the alleged threat to his life in detail, as discussed in §16 below.

14.Ground 2 to Ground 5 are bare assertions and are contrary to what was recorded in the DOI Decision and the TCAB Decision and must be rejected: -

(1)  Before the DOI, the Applicant had been represented by the Duty Lawyer Service as the Notice of Decision of 25 September 2020 was sent to the Applicant through them. It is also recorded in the TCAB Decision at §§5 and 38 that the Applicant completed the Non-refoulement claim form with assistance from a lawyer and an interpreter, and the Applicant signed an acknowledgment that he fully understood the documents.

(2)  It would appear from the DOI Decision that, in the Applicant’s initial application and at his interview with the Immigration Department, he had no difficulty in providing detailed information about his claim: see DOI Decision §6. In particular, the DOI Decision quoted or referred to various responses from the Applicant to the DOI’s questions during the interview: §§6.8, 6.14, 6.15, 6.17.

(3)  Despite the allegation that the Applicant had some documents in his mother language to submit to the Adjudicator which he refused to consider, no such documents are presented in his supporting affirmation in this application.

(4)  The Applicant attended the oral hearing before the TCAB without legal representation. He had the assistance of an interpreter (TCAB Decision §8) and there was no indication of any difficulty in giving evidence and/or answering the questions raised by the TCAB. As recorded in the TCAB Decision, the TCAB explored with the Applicant in detail at the hearing his personal circumstances and his claims to fear harm in Indonesia, and there were various occasions at the hearing where the TCAB put questions to and made inquiries of the Applicant and the Applicant’s responses were recorded: see TCAB Decision §§39-58.

15.Ground 6 self-evidently has no substance.

16.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds: §§34-79. It is clear that the TCAB considered the evidence available thoroughly and in detail. In particular, after noting various anomalies and internal inconsistencies in the account of the events by the Applicant, the TCAB concluded that it did not accept as true that the Applicant was ever involved in a road fatality in Indonesia, or that he was hiding, or pursued or threatened as claimed, or that he fears or faces a real chance of harm, death or prosecution in Indonesia: §§54-59. It therefore found that all of the grounds are not established: §§66-67, 72-73, 75, 79. I consider that the TCAB was entitled to come to such conclusion.

Conclusion

17.Therefore, I do not find any error of law or procedural unfairness or irrationality on the part of the TCAB Decision. I conclude that the Applicant’s intended challenge against the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

Dated the 23^rd 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