SUGIANA I KOMANG v. TORTURE CLAIMS APPEAL BOARD

HCAL 2060/2025

[2026] HKCFI 2338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2060 OF 2025

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 38-year-old national of Indonesia who arrived in Hong Kong on 27 May 2023 as a visitor with permission to remain as such up to 26 June 2023 when he did not depart and instead overstayed, and was arrested by police some 15 months later on 23 September 2024. For which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Indonesia he would be harmed or killed by the husband of the woman with whom he had had an affair in his home village.  

2.  The Applicant was born and raised in Village Warnasari, Jembrana Regency, Bali, Indonesia. After leaving school he worked as a clerk in some finance company, later married his wife and raised a family with 2 children by running a grocery store with his wife in his home district to support their family.

3.  In 2020 he met a married woman Nita from the same village and secretly started an affair with her, but during one of their rendezvous in May 2023, their affair was discovered by Nita’s husband Dedek who then confronted the Applicant and attacked him with punches, and before the Applicant managed to flee from the scene, Dedek threatened that he would kill him if he saw him again.

4.  As a result the Applicant did not return home and instead took shelter in his sister’s place in Panjer, Denpasar, but later when he was told by his wife that Dedek had come to his home looking for him with death threats, the Applicant became fearful for his life and fled to Jakarta, and on 21 May 2023 he departed Indonesia for Singapore, and from there he travelled to Hong Kong on 27 May 2023 as a visitor and subsequently overstayed, and upon his arrest by the police more than one year later on 23 September 2024, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 March 2025 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 28 March 2025 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 mistress’s husband Dedek upon his return to Indonesia as low due to the low intensity and frequency of past ill-treatment from Dedek, that there is no evidence of any real intention of Dedek to seriously harm or kill him other than angry words and empty threats, that in any event it was a private and personal dispute between him and Dedek 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 281 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 where it would be difficult if not impossible for Dedek to locate him.

7.  On 8 April 2025, 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 28 May 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 June 2025, 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 Dedek that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events of his alleged extramarital affair prior to his departure of Indonesia were true that there was no reliable evidence of any real intention of Dedek to seriously harm or kill him other than just angry words and empty threats, and that in any event it was a private and personal 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 Dedek that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 12 September 2025, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision which was a few days past the 3-months period as required by Order 53 rule 4(1) of the Rules of the High Court, Cap 4A for the filing of the Form 86, but given the fact that the Applicant was then still in prison with limited access to legal assistance as well as the relative insignificance of the delay, I propose to focus on the merits of his intended application, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just attached copies of the same documents for his appeal to the Board and some regurgitation of his claim as before but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of 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 or any merits in his intended application for judicial review.

10.  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.

11.  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 even 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.                

12.  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.

13.  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