SUDARMONO v. TORTURE CLAIMS APPEAL BOARD

HCAL 132/2024

[2025] HKCFI 5106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 132 OF 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Indonesia who arrived in Hong Kong on 1 January 2020 as a visitor with permission to remain as such up to 31 January 2020 when he did not depart and instead overstayed, and more than 9 months later on 3 November 2020 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 certain local gangsters for reporting to the police of their illegal activities. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Muntung Ngitak, Indonesia. After leaving school he worked as a truck driver in his home district to make his living.

3.  One day in October 2019 he witnessed a local gangster dealing drugs in his neighbourhood and reported the matter to the police which eventually led to the arrest of the gangster.

4.  About a week later while on the street in his home village, the Applicant was ambushed by several members of the same gang threatening to kill him for being responsible for the arrest of their fellow gangster, but the Applicant managed to flee from the scene unharmed.

5.  After the incident the Applicant became fearful for his life and fled to Sumbawa, and on 31 December 2019 he departed Indonesia for Macau before arriving in Hong Kong on 1 January 2020 where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 February 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 25 May 2023 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 those local gangsters upon his return to Indonesia as low due to the low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to deter him from giving evidence against their fellow gangster in the pursuing trial, that in any event 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 Jakarta where it would be difficult if not impossible for anyone to locate him.

8.  On 2 June 2023 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 30 November 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 December 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board[1] found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from some local gangsters that caused him to leave his country to come to Hong Kong to seek protection, that even if his claimed threats from those gangsters were real that there was no reliable evidence of any real intention of them to seriously harm or kill him, and that in any event in the absence of 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 any local gangsters that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 11 January 2024 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, and in his supporting affirmation of the same date he just made some bare and vague assertions that the Board did not properly consider his claim or that his lawyer did not help him with his appeal but without providing any necessary or relevant details or particulars or elaboration to corroborate such bare assertions. 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.  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 recently on 13 October 2025 filed an affirmation requesting to withdraw his application as he now wants to return to his home country as soon as possible.

15.  In the premises, 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 his wish 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