JAINUL WAHYUDI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2910/2019

[2025] HKCFI 1486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2910 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 11 September 2010 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 31 March 2025. I shall deal with his application on the papers.

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, aged 48, is a national of Indonesia. On 2 July 2016, he last arrived in Hong Kong and overstayed since 2 August 2016. On 3 August 2016, the applicant surrendered to the Immigration Department. In due course, he lodged a non-refoulement claim.

5.  The applicant’s claim was based on his fear of being harmed or killed by his creditors because of a loan dispute.

6.  According to the applicant, he was assaulted on 2 occasions by his creditors, but he did not suffer serious injury.

7.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 5 December 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the absence or low intensity and frequency of past ill-treatment is indicative of a small future risk of harm [12]; state protection was available [13-18]; and internal relocation alternatives were available and reasonable. [19]

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 21 May 2019, the Board conducted an oral hearing for his appeal, during which the Board found inconsistent evidence as to the violence against him by his creditors and did not accept that the applicant’s fear of serious violence from the creditors as being credible [26].

11.  Having considered the evidence, the Board found that the applicant did not establish that there are substantial grounds which support the conclusion that the applicant will face a real risk of relevant ill-treatment if refouled [31]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

12.  The applicant has filed Form 86 dated 3 October 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In the applicant’s affirmation in support of his application, he exhibited the Board’s letter dated 11 September 2019 and deposed that he would like to reject and review the decision dated 11 September 2019. However, the applicant did not put forth any specific reason to challenge the Board’s Decision.

DISCUSSION

14.  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).

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

16.  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.”

17.  The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

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