TARIPUDIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1358/2024

[2026] HKCFI 2357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1358 OF 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of Indonesia who arrived in Hong Kong on 2 June 2023 as a visitor with permission to remain as such up to 2 July 2023 when he did not depart and instead overstayed, and was arrested by police on 24 November 2023.  After he was referred to the Immigration Department for investigation, he raised a non‑refoulement claim for protection on the basis that if he returned to Indonesia he would be harmed or killed by his creditors for failing to repay his debts.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Desa Rancahan, Kelamatan Gabus Wetan, Indramayu, West Java, Indonesia.  After leaving school he worked as a farmer in his home district, and after marrying his wife in 2000, they moved to Jakarta to raise their family with 2 children there and where he worked in various odd jobs to support his family.

3.  In 2023 the Applicant was offered some job in South Korea, and to pay for his agency fees and relevant expenses he borrowed a loan from some local money-lenders to be repaid within one year and with monthly interest payments.

4.  Accordingly and on his agent’s instructions, the Applicant on 2 June 2023 travelled to Hong Kong to wait for his agent to provide him with the visa for entering South Korea, but he never heard anything further from his agent, and when he was later told by his wife in Indonesia that his creditors had come looking for him for repayment of his loan and threatened to kill him if he failed to do so, the Applicant became afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon subsequent his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 January 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 29 February 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditors upon his return to Indonesia as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of his creditors to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between just him and his creditors only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 279 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Bali or Palembang where it would be difficult if not impossible for his creditors to locate him.

7.  On 11 March 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 22 May 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 7 August 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from some creditors over some debts of his that caused him to overstay in Hong Kong to seek protection, that even if his claimed risk of harm from some creditors were true that there was no reliable evidence of any real intention of them to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between him and his creditors only without any official involvement that state or police protection would be available to the Applicant upon his return to Indonesia as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his creditors that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 19 August 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)   That the Adjudicator did not consider his claim properly and just dismissed it directly without taking any time to consider his life;

(2)   That the Adjudicator unreasonably refused to allow him to submit his supporting documents without translation and failed to give him time to arrange for their translations;

(3)   That the interpreter was impatient and unhelpful to him during his appeal hearing before the Board.

10.  These are however all just some bare and vague assertions of the Applicant without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what documents that the Applicant had wanted to submit but refused by the Adjudicator without translations, or in what way was the interpreter impatient or unhelpful to him during his hearing before the Board.  As none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Indonesia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  Moreover, the Applicant has recently in writing requested to withdraw his application as his issues in his home country have been resolved that he now wants to return to Indonesia as soon as possible.

15.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more issues for him to return to his home country, I accordingly dismiss his leave application.

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