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

HCAL 2552/2019

[2025] HKCFI 2190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2552 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr. Surawan ("Applicant") for leave to apply for judicial review of the decision of the Torture Claims Appeal Board ("Board") dated 23 August 2019 ("Board's Decision") when the Board affirmed the decision of the Director of Immigration ("Director") dated 11 April 2019 ("DOI Decision") in refusing the Applicant's claim for non-refoulement protection ("Claim").

Background of the Applicant and the Claim

2.  The Applicant is an Indonesian born on 12 May 1992 in East Java, Indonesia. He received 5.5 years of education and had 10 years of work experience.

3.  The Applicant claimed that in around March 2017, he encountered a man ("DA") in the Mojopurno Village in Indonesia, which was about two hours of motorbike drive away from his home village.  DA was around 35 years old.  The Applicant knew nothing about DA apart from his name.

4.  He met DA about 3 weeks later when DA was accompanied by 5 younger men.  He told the Applicant that they were members of the terrorist group ISIS and were on their way to kill someone.  DA asked the Applicant to join ISIS or he would be killed.

5.  The Applicant refused and escaped from them.  He ran to his home but was followed by DA and his men. DA insisted that the Applicant should join them and help them kill their target.  The Applicant argued with them for about half an hour and DA left without causing any harm to the Applicant.  The Applicant fled to Surabaya on the same day to avoid DA.

6.  The Applicant went back to his home about three weeks later.  About two weeks after his return, DA and his men went to his home again and asked him to join ISIS.  He threatened to kill the Applicant if the Applicant refused.  The Applicant managed to escape unharmed and hid in the forest for three days.

7.  While in the forest, the Applicant met a man who advised him to work in Malaysia to avoid troubles.  He therefore went to stay with an employment agency in Surabaya for the next few months.  He worked as an employee in a poultry farm in Malaysia between September 2017 and November 2018.

8.  DA continued to visit his home and made threats to the Applicant’s family about killing the Applicant.  When DA learnt that the Applicant was working in Malaysia, he threatened to go to Malaysia to find the Applicant.  Fearing for his safety, the Applicant left Malaysia and came to Hong Kong on 10 November 2018 via Macau.  He was allowed to stay as visitor in Hong Kong until 10 December 2018.  He did not leave by 10 December 2018 and overstayed in Hong Kong since then.

9.  The Applicant was arrest by the police on 1 January 2019 and lodged the Claim in January/February 2019.  He claimed that his life would be endangered by DA and his associates from ISIS if he returned to Indonesia because of his refusal to join them

10.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 ("Ordinance" and “torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention” and "persecution risk").

11.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board ("Appeal").  By the Board's Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

12.  On 3 September 2019, the Applicant filed the Form 86 herein ("Form 86") seeking leave for judicial review of the Board's Decision.  The Applicant filed his supporting affirmation on the same day ("Supporting Affirmation"). In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

Legal principles applicable to judicial review

13.  In a judicial review, the court does not step into the shoes of the decision makers.

14.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

15.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

16.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

17.  In the Supporting Affirmation, the Applicant put forward the following grounds for his intended judicial review:

(1)  the Board failed to properly apply “para 2 of the UN committee against Torture General Comment No.2” which requires states to conduct sufficient due diligence and introduce effective relief.  He relied on Re JKF (unreported, CACV 103/2014, 25 November 2014);

(2)  the Board failed to conduct an oral hearing for his appeal;

(3)  the Board failed to give sufficient reasons or identify sufficient basis for dismissing the Claim based on the BOR 3 risk;

(4)  the Board failed to identify sufficient basis for dismissing the Claim based on the torture risk and CIDTP risk;

18.  In §42 of the Board’s Decision, the Board had considered the availability of state protection in Indonesia in the context of relevant country of origin information (“COI”) by reference to the findings of the Director contained in the DOI Decision. The Board concluded that there was no suggestion that the Indonesian government would turn a blind eye towards terrorism. 

19.  In the JKF case (supra), the Court of Appeal held that there was room for reasonable arguments for judicial review when the lower court held that the ineffectiveness of the state machinery in providing protection provided substantial grounds for believing that the claimant would be in danger of being subjected to torture.

20.  In the Applicant’s case, the Board did not find that the state machinery of the Indonesian government was ineffective in providing state protection to the Applicant.  For availability of state protection to the Applicant, the Board referred to the DOI Decision.  In §16 of the DOI Decision, after considering the relevant COI, the Director was of the view that there was no suggestion from the COI that the Indonesian government had not addressed the problems of certain inadequacies in state protection and turned a blind eye towards terrorism and the COI did not show that the Indonesian government would be unable or unwilling to discharge its duties or tolerate any unlawful and abusive behavior committed by an individual as a systematic practice.  The Director assessed that should the Applicant have reported the ill-treatments and threats to the Indonesian police, and if the Indonesian government knew his fear, they would exercise due diligence to prevent or investigate the Applicant’s case.  The Director considered that there would be means to address the Applicant’s claimed fear from the terrorists, if he resorted to. 

21.  The Board also held the view that there was nothing before the Board to indicate that, if refouled, the Applicant would not be afforded the requisite level of protection from the Indonesian government (§64 of the Board’s Decision).  The facts on state protection found by the Director and the Board in this case were very different from those found in the JKF case (supra).  I am of the view that it is not reasonably arguable to contend in this case that the Board had not properly considered the extended concept of state acquiescence referred to in the JKF case (supra).   

22.  The Applicant complained that the Board failed to conduct an oral hearing for the Appeal.

23.  The Board applied ST v Betty Kwan & Ors [2014] 4 HKLRD 277 and held that the Appeal could be justly determined without a hearing under section 12 of Schedule 1A to the Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoluement Claims Petition Scheme.

24.  The Board proceeded with the Appeal on the basis of the evidence adduced by the Applicant without raising any material factual disputes.  The Applicant attended the court hearing of 28 March 2025 (“Court Hearing”) and confirmed that he had no further information to provide to the Board if there were an oral hearing.  As such, the Applicant had already had the opportunity to make “effective representations” of his case in that he had already presented all his evidence to the Board and he had no further information to provide even if there were an oral hearing.  Determining the Appeal without an oral hearing in such circumstances had not caused any “unfairness” to the Applicant. 

25.  The Court of Appeal also noted in the ST case (supra) at §26 of the judgment that there was no absolute right to an oral hearing.  It was for the adjudicator, in the exercise of his discretion, to take the most effective and fairest way to approach the concern in question.  As the Board had already considered the ST case (supra) before deciding to deal with the Appeal without an oral hearing and the Applicant had confirmed that he had no further information to provide to the Board even if an oral hearing were held, I do not see that it is reasonably arguable for the Applicant to rely on this complaint in his intended judicial review.

26.  The Applicant complained on the Board’s assessment on his claims under the torture risk and the BOR 3 risk.  The Board had in §§70-81 and 90-91 of the Board’s Decision set out its consideration and findings on the Applicant’s claims under the BOR 3 risk and the torture risk.  The decision of the Board on the Applicant’s claims under the BOR 3 risk and the torture risk had to be understood with reference to its risk assessment and other factual findings on the background.  I am of the view that it is not reasonably arguable in this intended judicial review to contend that the Board had failed to give sufficient reasons or identify sufficient basis for dismissing the Applicant’s claims under the torture risk and/or the BOR 3 risk.

27.  At the Court Hearing, the Applicant said that he wished the Board to review its reasons but he was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.

28.  In §§30-34 of the Board’s Decision, the Board set out its observations on the Applicant’s evidence and proceeded to assess the Applicant's claims based on his evidence.

29.  The Board considered that the harm, actual and perceived from DA and his men was not imminent and ill-treatment by them (if any) did not attain a minimum level of severity.  The future risk as suggested by the Applicant was his own speculation only.  There was no indication that DA or his men were public officials or acting in any official capacity.  From the information provided, there was no political parties, organization or the government in Indonesia being involved in the dispute between the Applicant and DA.

30.  The Board was of the view that the Applicant did not produce any reliable evidence to support the existence of the alleged incidents and the identities or background of DA or his men.  The Board further found that there was no evidence showing that DA and his men had ill-treated the Applicant with an intention listed in the definition of torture in Section 37U of the Ordinance or that the alleged ill-treatment, if any, had any relevance to the interest and/or benefit of the government of Indonesia. 

31.  The Board further found that there was no, or no reliable evidence that the Applicant had a well-founded fear of persecution for one or more of the reasons referred to in the Refugees Convention, namely, race, religion, nationality, membership of a particular social group or political opinion (“Convention Reasons”).  There was no evidence to show that the state of Indonesia was unwilling or unable to afford protection to the Applicant or that the government of Indonesia was unwilling to help the Applicant for any of the Convention Reasons, or for any other reason.  The Applicant had failed to show any evidence of acquiescence or failure of due diligence of a public official or other person acting in an official capacity.

32.  The Board found that, based on credible COI, the Indonesian police was unlikely to turn a blind eye towards terrorism (§42 of the Board's Decision) and there was nothing to suggest that adequate state protection would not be available to the Applicant (§64 of the Board's Decision).

33.  The Board further found that as an able-bodied adult with many years of work experience in Indonesia and Malaysia, it would not be unduly harsh to expect the Applicant to relocate to other parts of Indonesia (§§86-87 of the Board's Decision).

34.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

35.  In disputing the Board's assessment on evidence, risk of harm and availability of state protection, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality.  I find none in this case.

36.  Having rigorously examined the Board's Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

37.  The Board found that the Applicant had failed to show that he had a well-founded fear of being persecuted for a Convention Reason or that there were substantial grounds for believing that if refouled, there would be a real risk or substantial grounds for believing that he would be subjected to a real BOR 2 risk or BOR 3 risk. The Board further found that the element for “torture” as defined in Section 37U of the Ordinance had not been satisfied in the Applicant’s claim under the torture risk.

38.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection.  These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board's Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim.  The Board's Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

39.  In the premise and having considered the Board's Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant's intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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