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

HCAL 547/2023

[2025] HKCFI 4551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 547 of 2023

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.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 4 April 2023 for leave to apply for judicial review (the “leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 29 March 2023 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 3 September 2021 (the “Notice”), refusing his application for non-refoulement protection.

2.  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 killed by a candidate in a village head election (the “Candidate”) for having assisted or supported that Candidate’s opponent who was the Applicant’s relative; and by a triad member (“MS”) and his associates because of a debt dispute.

3.  The Applicant said that his relative lost in the election and the Candidate revenged on him for having supported the opponent.  The Candidate destroyed his crops and trees and assaulted him twice in June 2013.  The Applicant used to sell scrap iron, plastic bottles and cartoon boxes to MS.  In 2014, a dispute arose between him and MS as to the amount due to each other.  When he attempted to collect money due from MS in November 2014, MS and eight of his associates assaulted him.  He suffered a fractured finger and lost a tooth.  MS also assaulted him on three other occasions, but he forgot about the details and the injuries he suffered which the Board assumed to be not serious.  He made a report to the police station every time, but he heard no response from the police. About a year after the assault in November 2014, he moved to live with someone in Central Java.  While he was in Central Java, MS and his associates visited his home demanding payment and threatening to harm him.  They also assaulted his wife.  Then, the Applicant moved to work in Malaysia until 2019 when he was told by his friend that he overhead MS’s men had come to kill him.  Then, when he saw three men coming to his friend’s home where he was staying, he fled.  He returned to Java and lived in Kalimantan between February and October 2019.  Then, he flew to Macau on 3 October 2019.  In November 2020, he came to Hong Kong and sought non-refoulement protection.       

4.  Pursuant to section 12 of Schedule 1A of the Immigration Ordinance, the Board made a determination without holding an oral hearing. It assessed the Applicant’s claim on the basis of the case as he asserted.  It found the dispute between the Applicant and the Candidate had occurred ten years ago and he had not been attacked again since June 2013.  It found the injuries inflicted by MS and his associates on the Applicant on the four occasions were not serious.  The Board therefore found the risk of harm from the Candidate or MS to the Applicant on his return to Indonesia is not high. 

5.  It found the ill-treatment suffered by the Applicant arose out of his personal dispute with MS in which no government or public officials or persons acting in an official capacity was involved.  The Applicant had adduced no evidence to support his claim that MS had associates all over Indonesia.  Given the geographical size of Indonesia and the Applicant’s background, the Board found he would have no difficulties finding employment and relocating to other cities in Indonesia to avoid the risk of harm from MS and his associates.  Applying the law applicable to non-refoulement protection to the facts it found, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the Unified Screening System.  Hence, it dismissed his appeal against the Notice.  

Grounds for judicial review

6.  The Applicant did not advance any grounds of application for judicial review in his Form 86 and supporting affirmation.  At the hearing, after the legal principles applicable to judicial review was explained to the Applicant, he confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision.   In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

7.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board accepted the Applicant’s evidence and made some secondary finding of facts from those evidence.  Applying the law applicable to non-refoulement protection to the facts it found, the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  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 had failed to discharge the burden of proving his fears and risks of harm.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

8.  For the above reasons, the Applicant’s 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] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000547_2023_files/the_Board's_Decision.pdf