Kurniawan Hendrik v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1716/2021 on BabelCite. This High Court CFI judgment was delivered on 15 July 2026.
1. By way of Form 86 dated and filed on 17 December 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 26 July 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 4 cases
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HCAL 1716/2021 [2026] HKCFI 3752 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1716 OF 2021
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 17 December 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 26 July 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was not at risk on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), the applicant could have assessed and he would be able to access reasonable state protection, and in any event, internal relocation was a reasonable and practicable option for him. Hence, the Board rejected the applicant’s claim for non-refoulement protection and confirmed the decision of the Director of Immigration (“the Director”) dated 16 April 2021, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named “Torture Claims Appeal Board non-reFouLement Claims Petition OFFice” as the putative respondent and “TO Claims Appeal Board non-reFoulement Claims Petition OFFice” as the putative interested party. 4.In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party. 5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all. 6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. Late application 7.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 8.However, the applicant filed Form 86 on 17 December 2021, which was more than 4 months after the Board’s Decision (made on 26 July 2021). The applicant was hence late for more than one month in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 9.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
10.The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. 11.At the oral hearing before this court on 25 June 2026, the applicant simply said that he had forgotten why the Leave Application was filed out of time. 12.A delay of more than one month is not insubstantial, and the applicant could not even provide any explanation for the delay. More importantly, there is no merit in the Leave Application at all. 13.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone. 14.However, for the sake of completeness, this court will still deal with the Leave Application as discussed below. The applicant’s case 15.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 16.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, he would be in danger of being seriously harmed or even killed by Sutini, the creditor of the applicant’s late father due to his inability to repay the outstanding loan for his father and also due to his refusal to Sutini’s proposal for him to marry her then pregnant daughter in order to write off the loan. Oral hearing 17.The applicant requested for an oral hearing of the Leave Application, and his case was heard on 25 June 2026. 18.When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he has an 8 months-old son in Hong Kong who has heart problems and hence he could not go back to his country. He in fact admitted that there was nothing wrong with the Board’s Decision and only asked this court to allow him to stay in Hong Kong. Grounds for judicial review 19.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 20.The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 17 December 2021. In the said affirmation, he only stated that he did not want to go back to Indonesia, he was very scared because his life was still in danger, his loan shark would kill him as he did not have money to repay the debt, and he asked this court to let him live in Hong Kong. 21.As aforesaid, at the oral hearing, the applicant only said he wanted to stay in Hong Kong, he has a young son who was ill, and confirmed that there was nothing wrong with the Board’s Decision. Discussion 22.First of all, the applicant’s danger from the loan shark in Indonesia had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 23.His wish to remain in Hong Kong to take care of his young son is not a valid ground for judicial review either. 24.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 25.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 26.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 14 July 2021. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person. 27.As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection. 28.The Board had laid out its assessment of the applicant’s claims in paragraphs 105 to 121 of the Board’s Decision, and it is not necessary to repeat the same here. In gist, the Board did not find the applicant to be a credible witness and it would not attach any credence to the core elements of his evidence. The applicant was evasive in his testimony and had made up his evidence in the course of his examination as it suited his convenience. The Board found various implausibilities and inconsistencies in his claims. 29.The Board concluded that the applicant had failed to establish the truthfulness of the core elements of his evidence on a balance of probabilities. It was of the view that the applicant was never under any threat or danger when he was in Indonesia. Thus, he would not face any risk or danger if he were to return to his home country. 30.Despite its rejection of the applicant’s evidence, the Board still explored the availability of state protection and viability of internal relocation to the applicant for the sake of completeness. The Board found that a reasonable level of state protection was likely to be available in Indonesia and that internal relocation was a reasonable, practicable, safe and meaningful option for him (see paragraphs 127 to 139 and 140 to 151 of the Board’s Decision on state protection and internal relocation respectively). 31.Thus, the Board did not consider that the applicant would face a real risk of any of the proscribed forms of harm should he return to Indonesia. The Board rejected the applicant’s claims for non-refoulement protection in Hong Kong. 32.The finding of facts including the assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 33.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 34.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 35.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits. Dated the 15th day of July 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
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Cases cited in this judgment