HENDRA BUDI SANTOSA v. TORTURE CLAIMS APPEAL BOARD

HCAL 378/2021

[2026] HKCFI 710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 378 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.      On this court’s own motion, the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 11 March 2021”.

2.      The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 18 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 28 October 2021.  It was apparently a mistake as the stated date of decision was after the date of the filing of the Leave Application.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 11 March 2021 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 October 2020 (“the Director’s Decision”).  At the oral hearing before this court on 20 January 2026, the applicant confirmed that the Board’s Decision should be the subject matter of the application.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000378_2021_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same.

Amendment

4.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.  Hence, it is so amended on this court’s own motion.

The applicant’s case

5.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, he would be killed by a loan shark called Mbah Kus (“MK”) from whom his wife took out a loan of 30 million Rupiah.  The applicant’s wife also took out another loan of 40 million Rupiah from Bank Rakyat Indonesia (“BRI bank”).  The applicant was incapable of repaying the debts.  He was also afraid that his elder brother Agus would kill him for the shame he had brought upon his family because of the outstanding debts.

Oral hearing

7.  The applicant requested for an oral hearing and his case was heard on 20 January 2026.

8.  However, when this court asked the applicant for the grounds for the intended judicial review, the applicant merely said that he could not go back to Indonesia as his loans had not been repaid.  He also said that his wife and his father had passed away, he was living with his girlfriend in Hong Kong and he liked to live here.

Grounds for judicial review

9.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 18 March 2021. 

11.  What the applicant said at the oral hearing did not constitute any ground for his intended judicial review either.

Discussion

12.  First of all, the applicant’s danger from MK and Agus had been fully assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

13.  His wish to live with his girlfriend in Hong Kong is not a ground for judicial review at all.

14.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

15.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

16.  In assessing the appeal by the applicant, the Board held an oral hearing on 3 February 2021.  The applicant was present and was given the chance to present his case to the Board in person. 

17.  After due consideration of the evidence, the Board rejected the applicant’s claim as having no credibility at all.  The Board found that his account did not stand up to enquiry, the applicant contradicted himself and had deliberately tried to mislead the Board in his appeal/petition.  The Board rejected his claim that he had travelled to Hong Kong with the intention of seeking non-refoulement protection due to his fears.

18.  The Board found from the record of interview dated 3 September 2020 that the applicant knew full well that the loan from MK had been fully paid off.  Yet, he still pursued this ground of appeal at the Board’s hearing.

19.  As to the applicant’s claimed fear of his elder brother Agus, the Board found from the applicant’s evidence that (1) MK’s loan had been successfully settled; (2) the loan from BRI bank was already secured and the bank was not pushing hard for repayment and it had not issued any threats over the outstanding debt; and (3) his “in-law” relatives had started to repay the outstanding loan to BRI bank on his behalf.  

20.  The Board found that if the applicant and/or his wife had explained to Agus of their efforts, this might have prevented any further hostility from Agus towards the applicant.  Thus, the Board rejected the applicant’s fear of Agus as genuine.

21.  Despite that the Board had rejected the applicant’s claims on its findings on the applicant’s credibility, the Board did go on to assess the applicant’s claim on all the applicable grounds under the USM.

22.  The Board found that the applicant had never been subjected to severe pain or suffering that amounted to torture as required under the Immigration Ordinance.  He had not suffered any ill-treatment that reached the minimum level of severity or inflicted upon him for any of the Convention reasons.  There was no evidence of any state acquiescence.  The applicant had never sought assistance from the police or authorities in Indonesia.  The applicant failed to prove on balance that his home state was unwilling or unable to provide him with a reasonable level of protection.

23.  Moreover, the Board found that the applicant could reasonably relocate to Jakarta or Surabaya within Indonesia without undue hardship, and there he could live in sufficient safety and be free from his fears of MK, the BRI bank and Agus and their Jakarta contacts.

24.  Thus, the Board concluded that the applicant had failed to demonstrate any real risk on all the applicable grounds under the USM.

25.  The finding of facts including the assessment of risk and country of origin information was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

26.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

27.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

28.  For reasons aforesaid, the Leave Application is dismissed.

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