HCAL 908/2025
[2026] HKCFI 333
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 908 of 2025
BETWEEN
M Syamsul Hidayat Applicant
and
Torture Claims Appeal Board / Putative
Non-Refoulement Claims Petition Office Respondent
and
Director of Immigration Putative
Interested Party
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
✓ consideration of the documents only; or
consideration of the documents and oral submissions by the Applicant in open court;
Order by Deputy High Court Judge Levy:
1. The Form 86 be amended accordingly on the court’s own motion.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Background
1. By a “Notice of application for leave to apply for judicial review” in the
prescribed Form 86 filed on 15 April 2025, the applicant applied for leave to apply for
judicial review (“Leave Application”). The intended judicial review was against the
decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition
Office (“Board”) dated 24 March 2025 (“Board’s Decision”) dismissing the
applicant’s appeal against a decision of the Director of Immigration (“Director”) dated
1
27 December 2024 rejecting the applicant’s non-refoulement claim based on all
applicable grounds. The Board’s Decision is set out in the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000908_2025_file
s/the_Board's_Decision.pdf
2. Notwithstanding that the Director’s Decision as well as the Board’s Decision
were written in Chinese, I consider it more expedient to render my decision in English as
the applicant’s Form 86 and the supporting affirmation were both prepared in the English
language.
3. In the Form 86, the applicant named the Board as the interested party. As the
Director should have been the proper interested party, the Form 86 will be amended
accordingly on the court’s own motion.
4. The basis of the applicant’s claim was that, if refouled to Indonesia, he would be
harmed or killed by the creditor for an unpaid loan. The reasoning and findings were set
out in detail in the Board’s Decision and it is not necessary for me to repeat them.
Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions
stated in the Board’s Decision.
5. The applicant has requested for an oral hearing. On 7 August 2025, the applicant
filed an affirmation for the withdrawal of the Leave Application. On 13 August 2025,
the Removal Assessment and Litigation (Removal and Deportation) Section (2) of the
Immigration Department separately faxed a letter to the court, informing the court that
the applicant would like to withdraw his judicial review application. Enclosed with the
said letter was the applicant’s signed memo in English dated 1 August 2025. In the
memo, the applicant stated that he would like to withdraw the Leave Application. In the
circumstances, this court will dispose of the Leave Application on paper.
Discussion
6. The Leave Application operates as a ‘filtering’ process and there is no
requirement or expectation to give elaborate reasons for my decision. 1 It is sufficient to
state my observations after considering the Board’s Decision and the applicant’s
materials adduced.
7. In a proper Form 86, an applicant is required to identify the grounds of judicial
review clearly and succinctly 2 , and further to make full and frank disclosure of all
material facts to be verified by an affidavit. The applicant’s Form 86 and the supporting
affirmation contained no such grounds.
8. As the Courts have repeatedly stated, a finding of fact is exclusively within the
realm of the Board, which a court in a judicial review will not interfere with unless such
1
Re Zunariyah [2018] HKCA 14 at §23.
2
Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at §142.
2
finding involved an error of law, procedural unfairness, or irrationality. 3 In the present
case, the Board found that the past ill-treatment failed to meet the requisite level of
severity, and further that the creditor had no serious intention to harm the applicant.
The Board therefore concluded that the applicant would not face a real risk of harm if
refouled. It further found that state protection and internal relocation were both
reasonably available. These are findings of fact, which the court in a judicial review will
not interfere with subject to there being any public law errors.
9. Bearing in mind the enhanced standard that should be adopted in scrutinizing the
decision of the Board, this court is satisfied that the Board correctly applied the law
relating to all the grounds and observed a very high standard of fairness. The applicant
has not shown any errors of law or procedural unfairness or irrationality in the
Board’s Decision, nor were such grounds identified in the Form 86 or otherwise.
The applicant’s intended challenge to the Board’s Decision is not reasonably arguable
with any realistic prospects of success such that would enable this court to grant leave4.
Withdrawal application
10. Apart from the application to withdraw the Leave Application referred to above,
there is nothing outstanding in this action. In the circumstances, I make an order to
dismiss the Leave Application, and hereby order the dismissal of the Leave Application:
see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture
Claims Appeal Board [2024] HKCA 1140.
Orders
11. The Form 86 be amended accordingly on the court’s own motion.
12. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 19th day of January 2026
( Alfred CHAN )
for Registrar, High Court
3
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.
4
Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
3
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
Notes for the Applicant:
If leave has been granted, the
Applicant or the Applicant’s
solicitors must:
a) serve on the respondent Sent to the Applicant Sent to the Putative
and such interested parties on 19/1/2026 Respondent / the Putative
as may be directed by the Respondent’s solicitors / such
Court the order granting M Syamsul Hidayat Putative Interested Parties as
leave and any directions may be directed by the Court /
given within 14 days after Applicant’s ref. no: the Putative Interested Parties’
the leave was granted Nil. solicitors on 19/1/2026
(Order 53, rule 4A);
Torture Claims Appeal
b) issue the originating Board/Non-refoulement
summons within 14 days Claims Petition Office
after the grant of leave Putative Respondent’s ref. no.:
and serve it in accordance USM 25387
with Order 53, rule 5; and
Director of Immigration
c) supply to every other party Putative Interested Party’s ref.
copies of every affidavit no.: QA T/C 2699/24
which the Applicant (formerly RBCZ 5002374/24)
proposes to use at the
hearing, including the Department of Justice,
affidavit in support of Senior Assistant Law Officer
the application for leave (Civil Law)
(Order 53, rule 6(5)). (Civil Litigation Unit 2)
Form CALL-1
4