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

HCAL 2090/2019

[2024] HKCFI 3426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2090 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.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Teguh Santoso (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 17 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 4 October 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indonesian. He was born on 25 February 1983 in Kendal, Indonesia. He received 14 years of education and had 12 years of work experience as a minibus driver and a construction worker.

The Claim

3.  The Applicant claimed that he would be harmed or killed by members of the political party, Partai Hanura (“PH”), or a police detective (“R”) if he were returned to Indonesia. He relied on the following facts for his claim.

4.  The Applicant worked as a minibus driver between 2004 and 2015. The Applicant frequently visited a local bus terminal (“Terminal”) which was controlled by the PH people. The PH people forced him to join their party, but the Applicant refused. The PH people then threatened to kill him if they saw him near the Terminal. Despite the threat, the Applicant had never been harmed by the PH people in the past.

5.  The Applicant also claimed that in 2015, he was involved in a traffic accident (“Accident”) in which a lady passenger died. The passenger turned out to be a close relative of a local police detective (i.e. R). R tried to locate the Applicant and when his attempt was unsuccessful, R took the Applicant’s uncle to a police station where his uncle was beaten up badly. The Applicant’s father offered to pay compensation for the Accident, but R refused. R vowed to kill the Applicant. R did not file any police report against the Applicant. The Applicant also did not file any report because he wanted to settle the matter with R.

6.  The Applicant traveled briefly to Singapore between May and June 2016 to avoid R, but he had to return to Indonesia after his visa expired. He stayed peacefully in Batam, Indonesia during the period between his return from Singapore and his departure for Hong Kong on 20 November 2016.

7.  In around May 2017, the Applicant’s parents told him that there was no more threat from R and that he could safely return to Indonesia. He therefore filed an immediate withdrawal of the Claim in May 2017. However, the Applicant applied to re-open the Claim in July 2017, ostensibly because R visited his home frequently and threatened to kill him.

Procedural history

8.  The Applicant arrived in Hong Kong on 20 November 2016 as a visitor and was granted permission to stay until 20 December 2016. He overstayed and was arrested by the police on 25 December 2016. By written representations of 27 December 2016 and 19 July 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 (“Ordinance”);

(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”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; 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.

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 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 and the Director as the proposed respondents and interested parties.

The DOI Decision

12.  The Applicant had never been harmed by the PH people or R. The Director noted that the low intensity and low frequency of past ill-treatment from the PH people and R was indicative of a small future risk of harm upon the Applicant’s return. The Director did not accept that the ill-treatment, whether physical or mental, inflicted by the PH people or R on the Applicant attained a minimum level of severity.

13.  The Director assessed that the perceived harm or ill-treatment of the PH people and R was not as imminent and substantial as the Applicant asserted.

14.  The Applicant claimed that R was a serving police detective and had strong connections and influence with police stations in his home area. He believed that the local police would neither execute their duties impartially nor protect him.

15.  The Applicant’s problems with the PH people and R were private in nature and had nothing to do with the Indonesian government. There were no substantial grounds for believing that the state was involved in or will provide any form of encouragement to the PH people and R in threatening or assaulting the Applicant. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Indonesian authorities had performed due diligence on their duties and were willing and able to offer sufficient protection to its citizens. The Director was of the view that reasonable state protection would be available to the Applicant, if necessary.

16.  There was no evidence suggesting that the PH people and R had influence and resources spreading over the whole country of Indonesia for the purposes of locating the Applicant.

17.  The Director was of the further view that internal relocation would be viable. If the Applicant moved to Jakarta or Surabaya, the PH people and R would have great difficulty in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

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

The Board’s Decision

19.  The Board was of the view that the Applicant was not a witness of truth. The Board found his evidence to be flimsy, vague and lacking in specificity or detail. The Board considered that the Applicant had fabricated his claims in order to create a basis for his application for protection from non-refoulement. The Board gave a detailed analysis of the Applicant’s evidence in §§85 – 101 of the Board’s Decision.

20.  The Board also applied sections 37ZA(1) and 37ZD(2)(f) of the Ordinance and found that the Applicant’s failure to identify the alleged threats by R in an interview report dated 27 December 2016, which he only disclosed much later, to be damaging to his credibility.

21.  The Board therefore rejected the Applicant’s case in its entirety. It did not accept that the Applicant faced any risk from the PH people or R upon his return to Indonesia. Because they were the only sources of risk identified by the Applicant, it found that the Applicant would not face any risk upon his return.

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.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant did not provide any information in support of his intended judicial review application. Instead, he asked for issuance of discharge certificate for his bankruptcy but he exhibited a copy of the Board’s Decision to the Supporting Affirmation. No other supporting documents were produced.

27.  On 4 October 2024, the Director informed the court that the Applicant had been removed on 25 October 2023.

28.  A notice of hearing was sent to the Applicant on 15 October 2024 at his address in the court file notifying him of the court hearing scheduled for 30 October 2024 (“Court Hearing”). The Applicant did not attend the Court Hearing. The Applicant also made no response to a previous letter sent by the court to him on 24 September 2024. In such case, I decided to deal with this application according to papers placed before the court.

29.  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.

30.  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 four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

31.  The Board found that the Applicant was not a credible witness. The Board was not persuaded that the material events and the conditions described by the Applicant in Indonesia, upon which his claim was based, were factually accurate. The Board concluded that not even the centre piece of the Applicant’s claim could be regarded as reliable. The Board considered that the Applicant had fabricated his claim in order to create a basis for his application for non-refoulement protection.

32.  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 four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding 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

33.  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 a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.

34.  As the court was notified by the Director that the Applicant had been removed from Hong Kong and the Applicant had made no response to the letter sent by the court to him on 24 September 2024, the court will send a copy of this judgment and the sealed order to the Applicant at his address in the court file with a further copy set 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