Re Fakhruroji

CACV 776/2026, [2026] HKCA 1881

On Appeal From [2026] HKCFI 3726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 776 OF 2026

(ON APPEAL FROM HCAL NO. 124 OF 2026)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Michael Wong dated 15 July 2026[1] dismissing his application for leave to apply for judicial review against the decision dated 19 December 2025 of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision dated 27 October 2025 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.The applicant is a national of Indonesia born in 1999. He entered Hong Kong on 30 May 2025 and was given permission to remain as a visitor. He overstayed and surrendered to the Immigration Department on 29 August 2025. He later lodged a non-refoulement claim on 10 September 2025 based on fear of being harmed or killed by a man named Obek because he had an extra-marital relationship with Obek’s wife. Details of the applicant’s background, the basis of his claim and the Board’s reasons for rejecting his appeal were set out in the Board’s decision[6].

3.The Director rejected the applicant’s claim. The Board dismissed the applicant’s appeal after holding an oral hearing on 17 December 2025.

4.By a Form 86 filed on 12 January 2026, the applicant applied for leave to judicially review the Board’s decision.  He did not put forward any grounds for seeking relief in his Form 86 but stated in his supporting affirmation that the Board’s decision was biased and unfair.

5.The Judge heard his application at an oral hearing on 25 June 2026. By a Form CALL-1 dated 15 July 2026, the Judge dismissed the application holding that the intended judicial review has no realistic prospect of success. In gist, the Judge considered the applicant’s complaint that the Board’s decision was biased and unfair lacked particulars, and further noted that the applicant was present at the oral hearing and had a chance to present his case, the Board had questioned him extensively before concluding that his evidence was inconsistent and improbable. The Judge was satisfied that the Board had correctly set out the law and identified the issues and there was no irrationality or procedural unfairness.

Appeal to this Court

6.On 27 July 2026, the applicant filed a Notice of Appeal against the Judge’s decision.  The grounds of appeal stated that the applicant disagreed with the decisions of the Director and the Board and his case was not determined fairly.

7.The appeal was listed for hearing on 23 September 2026.  Despite directions given by the Court, the applicant did not lodge any written submissions.  He was thus deemed to have waived his right to make submissions and the scheduled hearing was vacated pursuant to the directions of the Court. We have therefore proceeded to determine the appeal on the basis of the available documents and materials.  

Discussion

8.In assessing the merits of the appeal, we 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.In the present case, the Board rejected the applicant’s evidence, finding it was inconsistent and vague in material aspects, including the alleged discovery by Obek of the affair between the applicant and his wife. The Board held that even accepting his account, the risk of harm was low, as the relationship had ended by June 2025 and there was no basis to assume that Obek will continue to pursue him. The Board further assessed that internal relocation was viable. The Board concluded that the applicant failed to show any real risk of harm entitling him to non-refoulement protection under any of the applicable grounds. These findings of fact and assessment of risk are open to the Board based on the evidence it received, and for the reasons it gave. The applicant has not pointed to any or any reasonably arguable public law error in relation to the Board’s findings and decision.

10.In this appeal, the applicant complained that the Director did not determine his claim fairly. It is well-established that once an appeal to the Board has been pursued, the Director’s decision is superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. It is therefore not open to the applicant to challenge the Director’s decision.

11.More importantly, the applicant has not identified any error in the Judge’s decision. We have considered the Judge’s decision and are satisfied that he had given proper and adequate reasons for holding that the intended judicial review has no realistic prospect of success.  

12.For the above reasons, the applicant’s appeal has no merits. Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.

[1] [2026] HKCFI 3726

[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/2026/HCAL000124_2026_files/the_Board's_Decision.pdf