Nurkholis v. Torture Claims Appeal Board

HCAL 2231/2024

[2026] HKCFI 4012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2231 OF 2024

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:

1.   Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 19 June 2024 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 30-year-old national of Indonesia who arrived in Hong Kong on 20 March 2023 as a visitor with permission to remain as such up to 19 April 2023 when he did not depart and instead overstayed, and was arrested by police on 10 August 2023. 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 maternal uncle over some land dispute within the family in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Turus, Malang, Jawa Timur, Indonesia. After leaving school he worked in a factory and as a site helper to make his living, got married and raised a family with a son in his home district.

3.Between 2015 and 2017 his maternal grandfather transferred his landed properties to the Applicant together with his mother and his maternal uncle, and after his grandfather passed away in 2022, his maternal uncle started to demand that those properties be sold and that the sale proceeds be given to him as the rightful heir in the family, but when both the Applicant and his mother refused, his uncle then became furious and made threats against them including to kill the Applicant with a knife if he still refused the demand.

4.To get away from such threats and harassments of his uncle, the Applicant in March 2023 decided to take a trip to Hong Kong for sight-seeing and to visit his friends, during which he was told by his mother on the phone from Indonesia that she had yielded to his uncle’s demand to sell those properties, and that his mother had accordingly signed the documents to enable his uncle to do so, but when the Applicant indicated that he was not willing to sign the transfer documents, his mother then advised him not to return to Indonesia for fear that his uncle might kill him, and so the Applicant did not subsequently return to Indonesia and instead overstayed in Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 October 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 27 December 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”).

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 maternal uncle upon his return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention his uncle to seriously harm or kill him after his mother had already yielded to his uncle’s demand to allow him to sell the property that there is no more reason for his uncle to harm the Applicant, that in any event it was a private land dispute between him and his uncle and 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”) shows 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Semarang or Surabaya where it would be difficult if not impossible for his uncle to locate him.

7.On 2 January 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 9 May 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 June 2024 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 a land dispute with his maternal uncle in his home district in Indonesia but found no reliable evidence of any real intention his uncle to seriously harm or kill him over their dispute, and that in any event given his own admission that his mother had already agreed to his uncle’s demand to sell the properties by signing the relevant documents that their dispute has since been resolved that there is no reason for his uncle to have any further adverse interest in the Applicant that the Board found that the Applicant will not face any real risk of harm from his uncle upon his return to Indonesia that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 22 November 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 assertion that the Adjudicator had failed to give a true decision on his claim but without providing any details or particulars or elaboration as to how it did so.    

10.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.As the last day of the three-month period for him to file his Form 86 fell on 19 September 2024 after discounting the month of August 2024 for the court’s vacation, the Applicant was therefore more than two months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of more than one month must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 19 June 2024 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.     

13.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward 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 merits in his intended application either.

14.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.

15.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

16.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Indonesia, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.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.

18.Moreover, the Applicant has recently on 7 May 2026 filed an affirmation and 14 April 2026 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.

19.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 that there are no more issues for him to return to his home country, I accordingly dismiss his leave application.

Dated the 17^th 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

Form CALL-1