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

HCAL 2088/2019

[2024] HKCFI 3634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2088 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Ahmad Sanusi (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 19 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 10 October 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

2.  In this case, the DOI Decision was in Chinese whereas the Board’s Decision was in English. The Applicant completed the Form 86 herein (“Form 86”) in English without assistance of interpreter but filed his English supporting affirmation (“Supporting Affirmation”) with the assistance of an interpreter. As the Applicant had chosen to file his application documents herein in English, I decided to issue this decision in English.

Background of the Applicant

3.  The Applicant is an Indonesian. He was born on 12 March 1992 in Sumatra, Indonesia. He received 12 years of education and had about 4 years of working experience as a machine repairer and a worker.

The Claim

4.  The Applicant claimed that in a night in mid-2016, he and 6 companions went to watch a puppet show when he ran into the head of a local gang (“S”). S and the Applicant had animosity towards each other because of past disputes. The Applicant and his companions got into a fight with S and S’s companions. The Applicant’s camp used wooden sticks and glass bottles to attack S’s camp. S’s legs were badly injured in the fight while the Applicant did not suffer any serious injuries (“Incident”).

5.  A day after the Incident, S went to the Applicant’s home with his friends and family (about 20 in total). The Applicant fled from his home before S could get hold of him. The Applicant then went to different places to avoid S.

6.  About a month later, the Applicant arrived in Jakarta. His family tried to settle with S, but S refused. About 8 or 9 days after arriving in Jakarta, the Applicant’s family informed him that S had arrived in Jakarta, so he went to Java to hide. The Applicant stayed peacefully in Java for about a month, but his friends told him that S had arrived in Java. The Applicant left Java and went to Jakarta, before finally coming to Hong Kong on 29 October 2016.

7.  The Applicant’s brother told him that S was still looking for him as of 2 September 2018. The Applicant claimed that he would be harmed or killed by S, his family and/or his friends if he were returned to Indonesia.

Procedural history

8.  The Applicant first arrived in Hong Kong on 29 October 2016 as a visitor. He travelled in and out of Hong Kong. He lasted entered Hong Kong on 26 December 2016 and was permitted to stay until 25 January 2017. He did not leave on 25 January 2017 but surrendered to the Immigration Department on 26 January 2017. By a written representation of 10 February 2017, the Applicant lodged the Claim.

9.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

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

10.  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.

11.  On 22 July 2019, the Applicant filed the Form 86 seeking leave for judicial review of the Board’s Decision. The Applicant filed the Supporting Affirmation on the same day. In the Form 86, the Applicant named the Immigration Department as the proposed respondent and interested party but referred to “the decision made by Immigration Department” on 19 July 2019. The DOI Decision was not dated 19 July 2019 but 10 October 2018. It was the Board’s Decision which was dated 19 July 2019. The exhibit produced to the Supporting Affirmation was the covering letter for the Board’s Decision. It is clear that the Applicant intended to seek judicial review against the Board’s decision. I proceeded with this application on such basis.

The DOI Decision

12.  The Director noted that the low intensity and low frequency of past ill-treatment alleged to have been suffered by the Applicant was indicative of a small future risk of harm upon the Applicant’s return to Indonesia. Further, the injuries he suffered in the Incident were not serious. The Director did not accept that the ill-treatment alleged (whether physical and/or mental suffering) attained a minimum level of severity.

13.  The Director noted that there was no evidence on S intending to seriously harm the Applicant (§11.4 of the DOI Decision). The Director noted that the Applicant never received or heard of any threat by S to seriously harm him and it was pure speculation on the Applicant’s part that S was looking for him for the purpose of harming him. The Director did not accept that the Applicant faced any serious risk of harm from S upon his return to Indonesia.

14.  The Applicant’s problem with S was private and personal disputes. There was no indication that the state was involved in, indifferent to, or had provided any form of encouragement to S in threatening the Applicant. The Director found that the Indonesian government did not have any adverse interest in the Applicant. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

15.  There were no substantial grounds for believing that S would or could mobilize huge resources to search for the Applicant throughout the country. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Semarang or Surabaya, S or his associates would have great difficulty in locating him. After considering his age, education and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

16.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

17.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board found that the Applicant’s evidence was internally adequately consistent and proceeded on the basis that the Claim was true (§40 of the Board’s Decision).

18.  The Board found that his dispute with S was a purely private matter not capable of giving rise to any claim based on persecution risk and that the Indonesian government was not involved in the dispute. It also found that he did not face any risk of facing death penalty if refouled to Indonesia and he did not have a personal and real risk of his absolute and non-derogable rights under BOR 2 or BOR 3 being violated.

19.  The Applicant only suffered very minor injuries in the Incident which did not require medical treatment. The Board did not accept that the alleged ill-treatment, whether physical or mental, attained a minimum level of severity. The Applicant had not directly met S, his family members and his friends after the Incident. He only guessed that they wanted to hurt or even kill him but such speculation was not supported by any concrete evidence. The Board found that the Applicant did not face any genuine and substantial risk of being subjected to ill-treatment if refouled to Indonesia.

20.  Based on COI reports, the Board found that although there were reports about the corruption and ineffectiveness of the Indonesian police and government, steps had been taken to improve the situation. The Board found that adequate state protection would be available to the Applicant upon his return to Indonesian.

21.  There was no evidence to show that S, his family members or his friends had connection with the police or the government. There was also no evidence or information to show that the Applicant was targeted by or of adverse interest to the Indonesian government. The Applicant chose not to report the unlawful acts of S to the police. There was no evidence to suggest that if he had done so, he would be denied protection (§64 of the Board’s Decision). The Applicant could rely on the Indonesian government to protect him if he faced any danger from S.

22.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

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

24.  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 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”.

25.  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

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

27.  In the Supporting Affirmation, the Applicant only stated that: “I would like to reject and review the decision made by Immigration Department on my case on 19 Jul 2019. They disregard my dangerous situation.” He then produced the covering letter to Board’s Decision as exhibits to the Supporting Affirmation.

28.  On 6 September 2024, the Director informed the court that the Applicant had been removed on 21 January 2021.

29.  The court had on 24 September 2024 sent a letter (“Letter”) to the Applicant’s address in the court file inviting the Applicant to send submissions to the court for his case. The Letter was returned to the court undelivered and marked “Incomplete address/no such address”. In such case, I decided to deal with this application according to papers already placed before the court.

30.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

31.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

32.  The Board found that the Applicant had failed to establish a well-founded fear that he would be subjected to the persecution risk nor substantial grounds for believing that he would face a genuine and substantial risk of being subjected to the torture risk, the BOR 2 or the BOR 3 risks, if he were to be refouled to Indonesia. Furthermore, reasonable state protection would be available to him.

33.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM. These are 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. 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.

Conclusion

34.  In the premise and having considered the Board’s Decision and the DOI 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.

35.  As the court was notified by the Director that the Applicant had been removed from Hong Kong and the Letter sent by the court to him at his address in the court file was returned undelivered, the court will send a copy of this judgment and the sealed order to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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