NURYADI v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 1294/2021 [2026] HKCFI 162 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1294 OF 2021 BETWEEN Nuryadi Applicant and Torture Claims Appeal Board and Putative Respondent Director of Immigration Putative Interested Party 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; Order by Deputy High Court Judge Bruno Chan: The application for leave to apply for judicial review be dismissed. Observations for the Applicant: The Applicant is a 49-year-old national of Indonesia who arrived in Hong Kong on 9 January 2020 as a visitor with permission to remain as such up to 9 February 2020 when he did not depart and instead overstayed, and was arrested by police on more than 3 months later on 27 May 2020. 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 the family of a motorcyclist killed in a traffic accident caused by him in his home district. He was subsequently released on recognizance pending the determination of his claim. The Applicant was born and raised in Grajagan Pantai, Jawa Timur, Indonesia. After leaving school he went to work in Malaysia, married his wife and raised a family with 2 children there. In 2019 he and his family returned to his home district in Indonesia, but one day in December 2019 while driving his vehicle in his home district he struck and knocked down a motorcyclist, and as he was in a panic he did not stop his vehicle and instead fled from the scene. About 2 weeks later he learnt that the motorcyclist had died from the accident, and shortly thereafter the cousin of the victim came to the Applicant’s home looking for him for compensation for the victim’s family, and when he was told that the Applicant had moved away, he threatened that if the Applicant failed to pay compensation, the victim’s family would hunt him down and kill him in revenge for the killing of the victim. As a result, the Applicant became fearful for his life, and so on 9 January 2020 he departed Indonesia for Hong Kong where he subsequently overstayed, 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 24 December 2020 and attended screening interview before the Immigration Department with legal representation. By a Notice of Decision dated 28 January 2021, 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”). 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 the traffic victim’s family upon his return to Indonesia as low due to the absence of or 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 press him to pay compensation for the accident, that in any event it was a private dispute between him and the victim’s 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 260 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 or Bali where it would be difficult if not impossible for anyone to locate him. On 8 February 2021, 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 6 May 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 July 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision. In its decision, the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the family of a traffic accident victim in revenge that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Indonesia were true that there was no reliable evidence of any real intention of the victim’s family to seriously harm or kill him other than to press him for compensation for the accident, and that in any event it was a private dispute between him and the victim’s family 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 anyone that his claim for non-refoulement protection failed on all applicable grounds. On 15 September 2021, 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 to which he just attached a copy of the decision 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. 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. 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 even 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. 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. Moreover, the Applicant recently on 24 October 2025 in writing requested to withdraw his application as his issues in his home country have already been resolved that he now wants to return to Indonesia. 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 no more issues for him to return to his home country, I accordingly dismiss his leave application. Dated the 9th day of January 2026 (Klein Tse) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 9/1/2026 Nuryadi Applicant’s ref. no.: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 9/1/2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 17615/21/2/31/I1933 Director of Immigration Putative Respondent’s ref. no.: QA T/C 982/20 (formerly RBCZ 10781/20) (PSO) (T2I26) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1