RAHMAT SAEPULAH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2299/2018

[2021] HKCFI 741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2299 of 2018

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Indonesia who arrived in Hong Kong on 27 December 2015 with permission to remain as a visitor up to 26 January 2016 when he did not depart and instead overstayed, and on the following day he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Indonesia he would be harmed or killed by his creditor for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Lampung, Sumatra, Indonesia. After leaving school he worked as a street hawker in his home district.

3.  In 2014 he borrowed a loan from a local money-lender for his hawking business repayable by monthly instalments including interests. 

4.  However, by early 2015 his hawking business did not improve and as a result he started to default in his loan repayments, and after being threatened and beaten by men sent by his creditor on several occasions, he fled from his home district to other towns, but when he heard that his creditor had sent men everywhere looking for him, he therefore departed Indonesia for Malaysia and then Macau, and eventually on 27 December 2015 he travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 4 June 2018 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and his men upon his return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on their part to harm or kill the Applicant other than to put pressure on him to repay his loan, that in any event it was a private monetary dispute between them without 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 1.9 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 part of Indonesia away from his home district in large cities such as Jakarta where it would be difficult if not impossible for his creditor to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 6 September 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 5 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s claim of threats from his creditor over his loan but found that it was a private monetary dispute and in the absence of evidence of any official involvement that state/police protection would be available to him upon his return to Indonesia as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.  

9.  On 22 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in that both his screening process before the Director and the Board were conducted in Chinese despite his request that they be conducted in English and that their decisions were also written in Chinese which he was unable to read or understand;

(2)  That he had been detained at the Castle Peak Bay Immigration Centre (“CIC”) and that the Adjudicator failed to give him sufficient chance to arrange relevant evidence for his claim as well as his appeal;

(3)  That both the Director and the Adjudicator failed to take into account or to give sufficient weight to the fact that the state and public officials of the Indonesia were unable to provide reasonable protection to its citizens under the duty of due diligence;

(4)  That the Director and the Adjudicator failed to take into account of those listed COI which supported his aversions that the police in his home country would not be able to protect and instead relied on COI which suited their preconceived conclusion which was a clear case of unfair attitude shown by then in itself enough to render their decisions void; and

(5)  That the Director and the Board failed to attain high standard of fairness required by the Wednesbury test in their decisions which should be considered as unreasonable in the scope of public law.   

10.  For the Applicant’s complaints under Ground (1) of procedural unfairness that his process before the Director and the Board were conducted in Chinese and that their decisions were also written in Chinese which he is unable to read or understand, I accept that he may indeed not be able to do so, as he did indicate in his NCF that other than his native language of Indonesia that he can read a little English but no mention of any proficiency in Chinese.

11.  The fact is that he was legally represented by lawyer from DLS throughout his process before the Director when his NCF was prepared in Chinese by his lawyer which was probably the reason why his screening interview before the immigration officer was also conducted in Chinese as well as the Director’s decision, but of which no doubt must have been explained and interpreted by his lawyer to him, while the record also shows that in his appeal before the Board he was assisted by an Indonesian interpreter throughout his oral hearing during which he was able to give evidence and make his submissions without problem, and that he never raised any problem with interpretation or requested that the hearing be conducted in English instead.

12.  In fact, even up to now in his present application or during his hearing before me, the Applicant never raised or advanced any argument or produce any evidence that his claim might had been misinterpreted by the interpreter or misunderstood by the Director or the Board, and that the basis of his claim had always been death threats from his creditor over the default of his loan repayment. As such and in the circumstances, I do not find any basis or merit in this complaint of the Applicant.

13.  As for his remaining 4 grounds, they all appear to me just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in assessing his claim, while as noted above the Board did conduct an oral hearing for his appeal during which he was able to give evidence and answer questions raised of his claim with the assistance of an interpreter without any difficulty. In the premises I do not find any basis or merits in any of these grounds.

14.  The same can be said of the additional grounds in his written submissions dated 7 April 2020 which appear to me from some pro forma commonly used in these types of applications but of no relevancy at all to either the facts or basis of the Applicant’s claim other than the complaint of not being provided with the hearing bundle earlier for his appeal to the Board, but as already noted above, the Applicant never raised any issue with it during his oral hearing before the Board, nor did he request any adjournment of the hearing to enable him to have further time to prepare for his appeal. As such I do not find any of them reasonably arguable for his intended challenge either.

15.  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.

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

17.  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.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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