GUNAWAN MUHAMMAD HERWIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 691/2026

[2026] HKCFI 2933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 691 OF 2026

Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of Indonesia who arrived in Hong Kong on 5 January 2025 as a visitor with permission to remain as such up to 4 February 2025 when he did not depart and instead overstayed, and some 8 months later on 22 October 2025 he surrendered to the Immigration Department and raised a non‑refoulement claim for protection on the basis that if he returned to Indonesia he would be harmed or killed by his creditor over his outstanding debts.  

2.  The Applicant was born and raised in Bungtiang, Sakra Barat, Lombok Timur, West Nusa Tenggara, Indonesia.  After leaving school he assisted in his family’s tobacco farming business in his home district.

3.  In August 2024 for the purpose of expending his family’s tobacco business, the Applicant borrowed a loan from a local money-lender to be repaid within one year with interests which he intended to make from the business income. 

4.  However, when he in January 2025 went on a sightseeing trip in Macau and Hong Kong, and shortly after arriving in Hong Kong the Applicant received telephone calls from his mother in Indonesia informing him that his creditor had suddenly come with his followers demanding for immediate repayment of the loan before its due date, and threatened to kill him if he failed to do so.

5.  As the Applicant was then without funds to repay his creditor, he was therefore afraid to return to Indonesia and so he overstayed in Hong Kong, and more than 8 months later in October 2025 he surrendered to the Immigration Department and raised his non‑refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 December 2025 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 15 January 2026 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”).

7.  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 creditor and followers upon his return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his loan, that in any event it was a private monetary dispute between him and his creditor 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 280 million people spread across a vast territory of more 1.9 million than square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Jakarta where it would be difficult if not impossible for his creditor to locate him.

8.  On 26 January 2026 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 5 March 2026 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 March 2026 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board accepted the Applicant’s claim of threats from his creditor over his outstanding debts but found no reliable evidence of any real intention of his creditor 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 just the 2 of them 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 creditor that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 8 April 2026 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.  As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

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.  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, I refuse to grant leave and accordingly dismiss his 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