Endro Sulistiono v. Torture Claims Appeal Board

HCAL 35/2020

[2025] HKCFI 2185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 35 OF 2020

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Hon Fung J:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Indonesia who arrived in Hong Kong on 11 January 2019 as a visitor with permission to remain as such up to 10 February 2019 when he did not depart and instead overstayed, and was arrested by police on 17 March 2019. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Indonesia he would be harmed or killed by 2 martial arts groups, namely Persaudaraan Setia Hati Terate (“PSHT”) and Persaudaraan Setia Hati Winongo (“PSHW”) for being a member in both groups who are rivals. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kecamatan Madium, Kabupaten Madium, Provinsi Jawa Timur, Indonesia. After leaving school, he worked various jobs in his home village.

3.In 2017, the Applicant joined PSHT which most of his fellow villagers were members. The organisation promotes practicing martial arts and helping each other. In February 2018, the Applicant took up a job in a railway carriage manufacturer named IMS INKA, but a condition of the employment was that he has to become a member of PSHW, which is a rival but similar organisation as PSHT.

4.Since then, the Applicant stopped going to PSHT meetings which caused some members of PSHT to suspect that the Applicant has joined PSHW. Some PSHT members came to his home for inspection and followed him to work. One day in July 2018 when the Applicant was returning home from work on his motorcycle, some PSHT members kicked his motorcycle and beat him while he was on the ground until he lost consciousness. He suffered injuries to his forehead and front arm and was taken to hospital for medical treatment.

5.After the attack by PSHT, in August 2018 the Applicant stopped going to PSHW meetings as well, but then PSHW suspected the Applicant wanted to quit and took away his PSHT membership card and threatened to kill him if he remained as a PSHT member, which caused the Applicant to resign from IMS INKA and moved to his uncle’s place in Provinsi Jawa Timur, but he was still fearful for his safety, and on 9 January 2019 he departed Indonesia for Macau, and from there he later arrived in Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 May 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 28 June 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by members of PSHT or PSHW upon his return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those PSHT or PSHW people to seriously harm or kill him or to specifically target him for harm other than to press him to quit their respective rival organisations, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 million people spread across a vast territory of more than 1.8 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Jakarta or Denpasar where it would be difficult if not impossible for those PSHT or PSHW people to locate him.

8.On 3 July 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 30 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board doubted the credibility of his claim of fear of harm from the PSHT or PSHW people that caused him to overstay in Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim until after his overstay in Hong Kong and only upon his arrest by the police, and that in any event it was a private and personal dispute between the Applicant and PSHT and PSHW respectively without any official involvement that state or police protection would be available to the Applicant upon his return to Indonesia if resorted to that it concluded that he will not face any risk of harm of any form that his claim for non-refoulement protection failed on all applicable grounds.

10.On 3 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the fact is that it has also been established by the Director in his decision that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Indonesia, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.Moreover, the Applicant recently on 9 May 2025 in writing requested in writing to withdraw his application as it is now safe for him to return to his home country as his problem has been solved.

15.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 22^nd day of May 2025

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