KARNAEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2669/2024

[2026] HKCFI 2694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2669 OF 2024

  Application for Leave to Apply for Judicial Review

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

Following:

The application for leave to apply for Judicial Review be dismissed. 

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 20 February 2020 as a visitor with permission to remain as such up to 21 March 2020 when he did not depart and instead overstayed, and on 16 February 2021 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 for failing to repay his debts.  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Semudun, Pontianak, Kalimantan Barat, Indonesia.  After leaving school he worked as a salesman in his home district to make his living. 

3.  In 2019 he started his own transportation business with the help of a loan borrowed from some local money-lender to be repaid within 6 months and with monthly interest payments which he initially managed to make from his business income. 

4.  However, he subsequently lost his business due to the corona virus pandemic, and when he defaulted with his loan repayment, his creditor started to send men to threaten him, and as he became fearful for his safety, he therefore departed Indonesia on 20 February 2020 for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 June 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.  By a Notice of Decision dated 22 July 2024 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 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 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 debts, 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”) shows 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 such as Jakarta where it would be difficult if not impossible for his creditor to locate him.  

7.  On 29 July 2024 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 25 September 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 31 October 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision. 

8.  In its decision[1] the Board found no reliable evidence of any real intention of his creditor to seriously harm or kill the Applicant 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. 

9.  On 31 December 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 or his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge.  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. 

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 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.  Moreover, the Applicant has recently in writing requested to withdraw his application as his issues in his home country have been resolved that he now wants to return to Indonesia as soon as possible. 

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, and in view of his latest confirmation of no more issue for him 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