DENI NURHADI YUSUF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 164/2022

[2025] HKCFI 5719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 164 of 2022

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

Following:

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 24 February 2022 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 10 February 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 October 2021 (the “Notice”), refusing his application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is an Indonesian national. His personal background, the factual background leading to the present application, the basis of his claim, 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, the Applicant claims that being a Muslim he will be persecuted or even killed by his parents and villagers because of his sexual orientation. In addition, he claims his mother enrolled him in the anti-government communist guerilla forces because he had refused to quit his sexual orientation and he is in fear of being called to service by the guerilla forces.

The Board’s finding

3.  The Board found the Applicant incredible. In his grounds of objection to the Removal Order issued against him dated 9 August 2017, he claimed he feared being harmed or killed by Muslim extremists because he had refused to join them. However, in his non-refoulement claim form (“NCF”) filed on 4 September 2021 four years later, he mentioned nothing about his fear of harm from the Muslim extremists, but claimed he feared being harmed or killed by his parents and neighbouring villagers because of his sexual orientation and he also feared that he would be called to service by the guerilla forces. The problem caused by his sexual orientation was known to him back in 2017, but he did not mention it in his grounds of objection to the Removal Order. In his screening interview on 4 October 2021, he confirmed that apart from his fear of harm from his parents and his neighbours, he had no other fears in Indonesia. This statement confirms that he had no fear of harm from the Muslim extremists. As for his fear of harm from the guerilla forces, he had never been called for service by the guerilla forces. The Board therefore found he had no real need to leave Indonesia in 2017, ie his claimed fear was not genuine. He was also unable to give a satisfactory explanation for absconding his recognizance since August 2017 until his arrest in July 2021. The Board did not accept his evidence, his claimed fear of harm and risk, if refouled. It did not consider him a genuine non-refoulement claimant and dismissed his appeal. This is the primary basis of the Board’s Decision.

4.  The Board went further and assessed his claim on the basis of the case as he asserted. As his father had passed away and his mother is too old and weak to pursue him, it found his parents were no longer a threat to him. Nevertheless, the Board accepted that if he continues to live with his mother in the same village, the Indonesian authorities may not provide him with timely protection. However, it found on the basis of the country of origin information and his background that he could safely return to Indonesia and relocate to any place outside his home village to avoid the harm or risk of harm. It rejected his argument that his mother and his neighbours could locate him anywhere in Indonesia as far fetched. By reason of her age, his mother would not have the ability to locate him throughout Indonesia, while his neighbours would not have the resources and network to locate him either. Having regard to his age, education and working experience, the Board considered it would not be unreasonably harsh to expect him to relocate within Indonesia to avoid the risk of harm from his mother and neighbouring villagers. It considered his risk of harm to be low.

5.  In respect of Torture Risk ground, the Board was not satisfied that the ill-treatment claimed would meet the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance in that it would not be inflicted by or at the instigation of a public official or person acting in an official capacity or with his consent or acquiescence. In respect of BOR 2 Risk ground, the Board found that this ground was not engaged because the Applicant’s claim is not concerned with a death sentence having been passed on him or fear of genocide. In respect of BOR 3 Risk ground and Persecution Risk ground, the Board found the Applicant’s risk of harm is low.  Applying the law applicable to non-refoulement protection, the Board found the Applicant is also not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism. Hence, it dismissed his appeal.

Grounds for judicial review

6.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements. However, he had advanced the following four grounds of application in his Form 86:

(1)  the Board reached the Decision wrongly, the Decision was unreasonable and unfair;

(2)  the Board failed to give proper weightage to the presence of state acquiescence in his case;

(3)  the Board did not accept his explanation and required him to respond to questions that he was not in a position to respond; and

(4)  the Director failed to take such argument into account.

7.  He said these grounds were prepared by him jointly with someone and he understood the grounds. However, when asked for particulars, he was unable to provide any. He said did not know or had not said a word about the particular ground. Despite much prompting, the best particulars he could give are related to Ground (2). He said there are a lot of gay people in Indonesia being bullied and he did not know why government did not take action.

8.  When it was put to him that this complaint is about the general attitude of the Indonesian community towards gay people and is not directly related to him, he said he had been abused and assaulted by his father and neighbour villagers. If by this ground, he is referring to his risk of harm from his father and the neighbour villagers, such ill-treatment had been considered by the Board to be low and that he could avoid it by internal relocation. His original claim was based on his fear of harm from his parents and the neighbouring villagers only. In his answer to Question 27 during the screening interview, he confirmed apart from the fear of harm from his parents and the neighbours, he had no other fears. That answer confirmed that he had no fear of harm of persecution by the community. As his new ground of harm from the community had never been advanced before the Board, it is not open to this Court to review the Board’s Decision on that ground. 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

9.  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 analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information. It found the Applicant incredible and rejected his evidence about the factual basis of his claim. Primarily, it was on that basis that it dismissed his appeal against the Director’s Notice.

10.  The Board then went further and assessed his claim on the basis of the factual case as it asserted. It made the further finding of fact as summarized in paragraphs 3 to 5 above. Applying the law applicable to 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 claim for protection under any of the applicable grounds under the USM. 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 failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

11.  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

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