Case Detail

KADEK SUHARTAYASA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2026] HKCFI 2199-EN-2026-04-29

KADEK SUHARTAYASA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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HCAL 1293/2025

[2026] HKCFI 2199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1293 OF 2025

_____________

BETWEEN

	Kadek Suhartayasa	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

29 April 2026

_____________

DECISION

_____________

The application

1. The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3. By Form CALL-1 dated 4 February 2026 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.

4. The Court’s decision was sent to the applicant on 4 February 2026 at his last known address without being returned from the Post Office. He is deemed to receive the Court’s decision[1].

5. The time for filing the notice of appeal expired on 18 February 2026[2].

6. By summons filed on 9 March 2026, the applicant applied for appeal against the Court’s decision out of time. He is late for 19 days.

7. In his affirmation support of his application, the applicant did not explain why he has delayed.

Discussion

8. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].

9. The Court will consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of his case.

10. In Re Adumekwe Rowland Ejike[2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif[2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard[2019] HKCA 168; and ReIrshad Muhammad[2018] HKCA 864 at [16].”

11. The applicant claimed that if refouled, he will be killed by his enemy.

12. The Director rejected his claim because it was not substantiated. He appealed to the Board.

13. Having considered the evidence, the Board dismissed his appeal for the reason that it agreed with the Director that his claim was unsubstantiated.

14. There is no valid reason from the applicant to challenge the Board’s Decision or the Court’s decision.

15. In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.

	(K.W. Lung)
	Deputy High Court Judge

The applicant was unrepresented.

[1] Re: Ravinder Singh[2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023

“17. The applicant had not filed any notice of change of address for service to notify of any changes in his address. According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. He was therefore deemed to have received the Court’s decision on 1 April 2022. ”

[2] The public holidays are included in the 14-day period as per Order 2(5) of the Rules of the High Court

2. Reckoning periods of time (O. 3, r. 2)
(5) Where, apart from this paragraph, the period in question, being a period of 7 days or less, would include a specified day, that day shall be excluded.
(35 of 1998 s. 5; 18 of 2016 s. 5)

[3] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration[2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:

“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”

HCAL 1293/2025

[2026] HKCFI 701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1293 of 2025

BETWEEN
	Kadek Suhartayasa	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 documents only; or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1. The applicant applies for leave to apply for judicial review of the Decision dated 13 March 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2. The applicant did not ask for a hearing.

3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4. The applicant is a national of Indonesia. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by a man named Agus, who had asked him to bribe voters for an election, which the applicant had failed to perform and he failed to return the money to Agus.

5. Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001293_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6. The Director considered the applicant’s claim in relation to the following risks:

a.   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b.   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7. By way of Notice of Decision dated 30 December 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8. The applicant appealed the Director’s Decision to the Board. On 27 February 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

9. Having considered the evidence, the Board made the findings below.

(1)   The applicant had not sought protection soon after he entered Hong Kong. By section 37ZD, the Board treated his behavior as detrimental to his credibility. [31]
(2)   He was never actually harmed by Agus or his men. [43(g)]
(3)   There was no reliable evidence to show that Agus would harm or kill him if he returns to Indonesia; that he would face risk throughout Indonesia; that he suffered injuries to the required severity; and the state of Indonesia will be unwilling to help him. [46]
(4)   Internal relocation to Semarang or Bandung is viable.

10. For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11. The applicant has filed Form 86 dated 6 June 2025 for leave to apply for judicial review of the Board’s Decision.

12. In support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision. He requested a chance to talk to the adjudicator again.

DISCUSSION

13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

16. The applicant has raised no valid ground to challenge the Board’s findings. His request to talk to the adjudicator is irrelevant to this application, and the Court has no jurisdiction to make this order.

17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 4^th day of February 2026

(Klein Tse)
for Registrar, High Court

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 and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 4/2/2026 Kadek Suhartayasa Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4/2/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 25376 Director of Immigration Putative Interested Party’s ref. no.: INCL-0000911-24 (0) (CZ) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1