SUSANTO AGUS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 858/2022

[2025] HKCFI 2122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 858 of 2022

 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;

1.   Leave to amend the Form 86 be granted; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 31 August 2022 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 22 August 2022 (the “Decision”) dismissing his appeal against the decision of the Director in his Notice of Decision dated 28 April 2021 (the “Notice”), refusing his application for non-refoulement protection.  He named himself and the Board as the proposed respondents and the proposed interested parties.  The Applicant could not be applicant, respondent and interested party at the same time.  Having read the Decision, the Court considered that the Applicant, the Board and the Director of Immigration are respectively the appropriate applicant, respondent and interesting party.  On its own motion, the Court made the above amendments to the Form 86.

Background

2.  The Applicant is an Indonesian national.  He last entered Hong Kong on 6 March 2019 as a visitor and overstay since 4 May 2019.  He surrendered to the Immigration Department on 26 March 2020 and made a non-refoulement claim on 3 April 2020.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. His application was rejected by the Director’s Notice.  His appeal was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.  

The Applicant’s case

3.  The following account of the Applicant’s case is based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims that if returned to Indonesia, he will be harmed or killed by Aji Setiawan and his associates, because he had injured one of their associates in a traffic accident.   

4.  The Applicant, now aged 31, was born in Banyuwangi, Indonesia.  He is single. His parents and sister are living in Indonesia.  He had nine years’ formal education and had working experience as a foreman and farmer in Indonesia.  

5.  He claimed that one day in January 2019, he knocked down a motorcyclist at the traffic light.  The motorcyclist was injured in his forehead and suffered a fracture in his leg.  The police arrived at the scene after the accident.  He took the injured motorcyclist to a nearby hospital.  Subsequently, the motorcyclist’s elder brother arrived.  He was very angry and pulled the Applicant’s upper garment.

6.  Two days later, while he was taking his sister to a bus stop by motorcycle, he was intercepted by another vehicle.  Seven unknown men armed with wooden sticks and knives blocked his way.  He immediately told his sister to run away.  Without saying anything, the men assaulted him.  He could identify one of the men named Aji Setiawan.  The assault lasted for about 15 minutes.  He managed to escape and went to Pedotan Hospital for treatment.  He then filed a complaint of the assault at the Pedotan Police Station.  The police took a statement from him and said they would follow up.

7.  Worried about being assaulted again, he stayed at his friend’s home for two days. After that, he returned home, packed his clothes, told his family about the background of the attackers, and went to stay at his sister’s place in Surabaya.  Whilst there, he learnt that his sister received two unknown calls asking for him.  He suspected those calls were from Aji Setiawan’s underlings.  During the same period, his mother told him that she saw some strangers wander about outside his home and there was an occasion when someone threw a stone at his home breaking a window.  His father told him that one of the attackers was the elder brother of the motorcyclist and had political background.  One of the other attackers was Aji Setiawan, who belonged to Persatuan Setia Hati Teratai (a karate association).  His father said that he had tried to follow up with the police about the complaint but he was told to wait. 

8.  In late January 2019, the Applicant went to Kota Malang for two months to arrange for his passport and air tickets.  Whilst there, he received an unknown call asking for his whereabouts.  He immediately hung up.  For fear of being traced by Aji Setiawan’s underlings, he changed his mobile phone number.  He did not see Aji Setiawan or the other attackers again.   Then, he went to work in Bali until April when came to Hong Kong.

9.  The Applicant claims that state protection is not available, as the police in Indonesia is corrupt, and it is implausible to relocate within Indonesia because the attackers had political background and could locate him through their powerful network throughout the country.

The finding of the Board

10.  The Applicant testified before the Board.  The Board accepted that he had an accident injuring a motorcyclist and had encountered the elder brother of the motorcyclist.   However, it had doubts about the assault and the threats.  It did not accept the alleged assault on the Applicant had occurred, as there was no evidence showing the motorcyclist’s injury and whether the injury may cause any serious or permanent disability.  Hence, it found there was no basis to support the Applicant’s claimed revenge by Aji Setiawan.  It held the view that if Aji Setiawan really wanted to pursue and hold the Applicant accountable, he could complain to the police and ask them to follow up.  As the Applicant was assaulted only once and suffered minor injuries despite being attacked by seven armed assailants, the Board found Aji Setiawan had no real intention to seriously harm him.  It also found adequate state protection available.  Hence, the Board found that there could not possibly be any substantial grounds for finding that the Applicant will face a real risk of ill-treatment if refouled to Indonesia.  It therefore came to the conclusion that the Applicant had failed to prove his entitlement to protection under Torture Risk ground. 

11.  The Board found the Applicant was only assaulted once and did not suffer serious injury.   It also found that there was no basis for the Applicant to believe the unknown calls were from Aji Setiawan or his underlings. Hence, it found the Applicant had failed to prove his entitlement to protection under BOR 2 Risk ground. 

12.  As the Applicant did not suffer injuries which attained the minimum level of severity, the Board found he had failed to establish his claim under BOR 3 Risk ground.

13.  Lastly, it found the Applicant’s dispute with Aji Setiawan and his associates was a personal dispute and the ill-treatment he suffered was not on account of one of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol. 

14.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds.  Hence, it dismissed his appeal against the decision in the Notice.

Legal principles applicable to judicial review

15.  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[5].

Grounds for judicial review

16.  In Form 86 and supporting affirmation, the Applicant had not advanced any ground of appeal.  He only reiterated that he did not want to go back to Indonesia because his life would be in danger, as he would be killed if returned to his home country.   In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm if returned to Indonesia.  For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.

17.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion

18.  With the greatest respect to the Board, its assessment of the evidence is fraud with error of law and irrationality. Though the claimant bears the burden of proof, the standard he has to discharge is one of low standard and not the criminal or ordinary civil standard.  The general approach as laid down in Hidayah[6] is that if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.  In paragraph 26 of the Decision (as summarized in paragraph 10 above), the Board accepted the Applicant had encountered the elder brother of the motorcyclist (the elder brother angrily pulled the Applicant’s upper garment).  The Board had not made any adverse finding of credibility against the Applicant, particularly not on this issue; but then it threw out his evidence about the alleged assault and threat by the elder brother on the Applicant. 

19.  The reason the Board gave for disbelieving the Applicant is that it doubted the Applicant’s theory of revenge.  The reasons it gave for entertaining that doubt are the absence of evidence of the injuries suffered by the motorcyclist and evidence whether the injuries would result in serous or permanent disability.  There was evidence from the Applicant that the motorcyclist suffered injuries on his forehead and a fractured leg, though not medical evidence as such and no evidence about permanent injuries.  More importantly, the Board was adopting a reasonable man’s approach in assessing the conduct of an alleged non-law-abiding person who would assault people not necessarily for causes which are honourable or justified and who would make unwarranted demand over and above that provided by the law.  The evidence required by the Board is medical evidence, not of the Applicant but of a third party.  It is not the type of evidence which may reasonably expect would be accessible to the Applicant.  In reality, disputes and crimes occur every day because these are people who do not act as reasonable people do. The Board’s approach in assessing the evidence is unrealistic. Furthermore, the standard of proof required by the Board was not the ordinary civil standard, but the low standard as is appropriate for this type of case.  Arguably, this finding of fact is the result of an error of law and is irrational.  This finding formed the basis of the Board’s finding in respect of the other three risks.  Though the Board found that reasonable state protection is available, this is not a finding in vacuo. It depends of the level of risk.  Hence, the Board’s conclusion could not be saved by this finding. 

Conclusion

20.  The Board’s finding cannot stand the anxious scrutiny of the Court.  The intended review has some prospect of success.  Accordingly, leave to apply for judicial review is granted.  The Applicant is reminded the need to comply with the directions in this Form CALL-1.

21.  For the above reasons, the leave application is refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]

[6] CACV 160/2018, [2018] HKCA 595