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

HCAL 2663/2019

[2025] HKCFI 3796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2663 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;

1.  The Form 86 be amended as indicated in paragraph 1 below; 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 11 September 2019 for leave to apply for judicial review (the “leave application”) of a decision dated 22 March 2019. He named the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as the proposed respondent and identified the decision in respect of which relief is sought as “22 March 2019”. Enquiries with the Board revealed that the Board had made a decision in respect of the Applicant in the non-refoulement context dated 4 September 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection. Piecing these information together, it is obvious that the Applicant’s intention was to seek judicial review of the Board’s Decision dated 4 September 2019 and that he was mistaken about the date of the Decision. On its own motion, the Court amended his Form 86 to the above effect to give effect to his true intention.

2.  The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered that the application could be justly determined on paper without an oral hearing.

3.  The Applicant is an Indonesian national. His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below [1] for reference. In gist, he claims that if returned to Indonesia, he will be harmed or even killed by a loan shark for being unable to repay the loan he borrowed from the loan shark for starting his charcoal business.

Grounds for judicial review

4.  In his supporting affirmation, the Applicant repeated the gist of his case and emphasized that his life would be in danger if returned to his home country because he is unable to repay the loan he borrowed and the loan shark will be able to locate him and kill him. 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 his home country. This is not permissible in an application for judicial review: see Nupur Mst v Director of Immigration[2]. 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.

Overall scrutiny

5.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the Unified Screening Mechanism; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

6.  The Board assessed the Applicant’s claim on the basis of his case as he asserted. It found his alleged risk of harm from the loan shark arose out of a private monetary dispute which had nothing to do with any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol. Not only that, it accepted the Applicant’s evidence that the loan shark’s intention was to take him to a police station and/or to have him send to prison for non-payment. The loan shark had no intention to kill the Applicant. The Board found the risk of harm, if any exists at all, is extremely low if not non-existent. The Applicant never suffered any physical or mental harm which attained a minimum level of severity. The Board was satisfied that there are no substantial grounds to believe that the Applicant is in danger of being subjected to torture within the definition of section 31U of the Immigration Ordinance. It also found on the basis of authoritative and credible country of origin information that the Applicant could avoid the risk of harm by internal relocation; but considered that unnecessarily in view of the above finding. It was on these basis that the Board found the Applicant had failed to establish that there are substantial grounds for believing that he would be liable to be subjected to ill-treatment if refouled. Then, applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The proposed judicial review has no realistic prospect of success.

Conclusion

7.  For the above reasons, the Applicant’s Form 86 is amended but the leave application as amended 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