Suandi I Wayan v. Torture Claims Appeal Board

HCAL 1984/2025

[2026] HKCFI 441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1984 OF 2025

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

Following:

Order by Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Indonesia who arrived in Hong Kong on 19 July 2024 as a visitor with permission to remain as such up to 18 August 2024 when he did not depart and instead overstayed, and was arrested by police on 5 November 2024. After he was referred to the Immigration Department for investigation, he raised a non‑refoulement claim for protection on the basis that if he returned to Indonesia he would be harmed or killed by his paternal uncle over a land dispute within their family.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Banjar Dinas Tohjiwa, Desa Kertha Buana, Kecamatan Sidemen, Bali, Indonesia.  After leaving school he farmed on his family’s farmland, married his wife and raised a family with a daughter in his home village.

3.His family’s farmland was inherited by his father from his grandfather, and as his father was getting old, and so in 2022 he passed the land to the Applicant, whereupon his paternal uncle who had always coveted the land started to demand the Applicant to kand over the land to him, and when the Applicant refused, his uncle then made threats against him by coming with his followers to the Applicant’s home to threaten his parents that he would kill the Applicant if he failed to give him the land.

4.To avoid his uncle’s threats and harassments, the Applicant in July 2024 took a trip to Hong Kong for sightseeing, during which he was informed by his parents on the phone that his uncle had planned to kill him upon his return from his trip, and so the Applicant became afraid of returning to Indonesia and therefore overstayed in Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 December 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 13 June 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 found no substantial grounds for believing that there is any real and foreseeable risk of him being harmed or killed by his uncle upon his return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of his uncle to seriously harm or kill him other than just empty words and threats, that in any event it was a private land dispute between him and his uncle within their family 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 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 his uncle to locate him.

7.On 26 June 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 13 August 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 25 August 2025 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board accepted the Applicant’s claim of fear of harm from his uncle over their land dispute but found no reliable evidence of any real intention of his uncle to seriously harm or kill him other than just empty threats, and that in any event it was a private land dispute between just the 2 of them only within the family 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 uncle that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 2 September 2025 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 stated that he is not satisfied with the decision as he still has problem in his home country 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.

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 correctly 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.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.It is also of note that the Applicant recently on 2 December 2025 filed an affirmation requesting to withdraw his application but without providing any reason or explanation as to what has happened to his claimed risk in his home country.

14.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, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 23^rd day of January 2026

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