JOKO SUSIANTO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1522/2020

[2025] HKCFI 3922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1522 OF 2020

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Indonesia who arrived in Hong Kong on 9 December 2017 as a visitor with permission to remain as such up to 8 January 2018 when he did not depart and instead overstayed, and was arrested by police on 13 January 2018. 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 brother-in-law over their personal dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Banyuwangi, Indonesia.　After leaving school he worked as a farmer on his father’s farmland, got married and raised a family with a daughter in his home district.

3.  After his father passed away in 2015, his father’s estate including their family house and the farmland were to be distributed amongst the Applicant, his mother and his sister, but in about 2017 his sister’s husband started to raise issues over the distribution and demanded the Applicant to give up his share in the estate, and when the Applicant refused, his brother-in-law then made threats against him.

4.  Several weeks later the Applicant was confronted by some unknown men in the street demanding him to give up his share in his father’s estate, but the Applicant suspected that they were sent by his brother-in-law to threaten him but he managed to flee from the scene without being harmed.

5.  Some 2 weeks later he was asked by his sister to meet in her home for discussion, but when he arrived he was attacked by some unknown men and was slashed by a knife on his back, but he managed to make his escape from the scene to seek medical treatments in a local clinic.

6.  After another attack by those men sent by his brother-in-law, the Applicant became fearful for his safety and fled to Pesanggaran to take shelter in his uncle’s place, and on 9 December 2017 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 11 September 2018 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 11 October 2018 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”).

8.  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 his brother-in-law 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 brother‑in-law to seriously harm or kill him other than to press him to give up his share in his father’s estate, that in any event it was a private dispute between him and his brother‑in-law 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 260 million people spread across a vast territory 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 Bali or Jakarta where it would be difficult if not impossible for his brother-in-law to locate him.

9.  On 23 October 2018 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 8 May 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 May 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board accepted the Applicant’s claim of threats from his brother-in-law due to their dispute over the sharing of his father’s estate but found no reliable evidence of any real intention of his brother-in-law to seriously harm or kill him given the fact that his mother has been residing in his father’s estate without any harm or threats from anyone all these years, and that in any event it was a private property or land dispute between him and his brother-in-law within their 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 his brother-in-law that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 17 July 2020 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 the decision is not fair but without any details or particulars or elaboration as to how it is so, 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.

12.  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.

13.  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.

14.  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.

15.  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.

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