HENDI PINTANIUS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2083/2019

[2024] HKCFI 3432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2083 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 Hendi Pintanius (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 14 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 September 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 1 July 1981 in Kalimantan Timur, Indonesia. He received 12 years of education and had 10 years of work experience as a mechanic and a construction worker.

The Claim

3.  The Applicant relied on the following facts for his claim. He claimed that in March 2013, he started working as a construction worker for a company (“Company”). When he worked in the materials department of the Company, he was doing stocking and book keeping of building materials. He discovered in about June 2014 inaccuracies in the accounting records and corruption problems in numerous projects. The Applicant made copies of the accounting records and other files (“Files”). The Files contained the names of government officials and high-ranking military personnels who might be corrupt.

4.  The Applicant claimed that a director of the Company (“Gunawan”) discovered in around September 2014 that the Applicant made copies of the relevant documents. Gunawan and his partners became concerned that the Files would be leaked to the media.

5.  The Applicant did not quit his job immediately because he was afraid this might create suspicion. He kept the Files as evidence of what happened in the Company. He did not send the Files to the authorities because he was afraid. He entrusted the Files to his colleague and friend (“IW”) but had lost contact with IW before he left for Hong Kong.

6.  Without resigning from the Company, the Applicant stopped working for it since December 2014. He left Indonesia for Hong Kong on 11 December 2014.

7.  The Applicant was told by his father in February 2015 that after he left, a general (“General”) and 4 military men visited his family in Indonesia to look for him. The General threatened his family members that if they did not turn over the Applicant to the General upon the Applicant’s return, they would also face persecution. Since then, in about every 2 months, 2 men in civilian clothes regularly went to the Applicant’s home asking for his whereabouts.

8.  IW also informed the Applicant that Gunawan had falsely accused the Applicant of embezzlement at the Company and an arrest warrant had been issued against him.

9.  The Applicant claimed that he would be harmed or killed by Gunawan or the General if he were returned to Indonesia.

Procedural history

10.  The Applicant arrived in Hong Kong on 11 December 2014 as a visitor and was granted permission to stay until 10 January 2015. He overstayed and was arrested by the police on 23 February 2015. By written representations of 5 and 6 March 2015, the Applicant lodged the Claim.

11.  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;

(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.

12.  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.

13.  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 affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents and interested parties.

The DOI Decision

14.  The Director noted that the low intensity and low frequency of past ill-treatment from Gunawan and the General was indicative of a small future risk of harm upon the Applicant’s return. The Director was of the view that they did not appear to have the real intention to kill the Applicant as they had ample time and opportunity to do that before the Applicant left Indonesia but did not do so.

15.  The Director was of the view that even if the Indonesian police was looking for the Applicant for the false charge reported by Gunawan against the Applicant, the police was only discharging their duties to investigate suspected offences. There was no indication that the Applicant would be arrested arbitrarily or convicted of the crime without fair legal procedures. Relevant country of origin information (“COI”) showed that the Indonesian government did have measures to protect its citizen’s right to have fair trial in judiciary system.

16.  The Applicant did not encounter any difficulty upon passing through the immigration control when he departed Indonesia. This showed that he was neither a target of the police nor the government. On the issue of state protection, after considering the COI, the Director found that reasonable state protection would be available to the Applicant, if necessary.

17.  There was also no evidence to show that the Indonesian government was involved in the alleged risks towards the Applicant. Without the support or acquiescence from the whole government or the ruling party, it was reasonably unlikely for Gunawan and the General to mobilize and utilize the power and resources of the whole party or government to pursue the Applicant all over Indonesia.

18.  The Director found that internal relocation would be viable. If the Applicant moved to Surabaya or Jakarta, Gunawan and the General 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.

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

The Board’s Decision

20.  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 formed the view that the Applicant was not a witness of truth. The Board gave a detailed analysis of his evidence at §§87 – 100 of the Board’s Decision.

21.  The Board was only prepared to accept that the Applicant worked at the Company, as he claimed. It also accepted that the brand manager of the Company in September 2014 had the surname of Gunawan. However, the Board noted that the Applicant gave contradictory and inconsistent evidence about the central parts of his case, namely the discovery of accounting irregularities and corruption and the subsequent persecution by Gunawan and the General, which led the Board to seriously question his credibility.

22.  The Board also found that certain parts of the Applicant’s claim made little sense, for example, the Applicant claimed that he made copies of the relevant files (i.e. the Files) because he wanted to expose the wrongdoings but ultimately, he did nothing to bring the matter to the attention of the public.

23.  The Board therefore rejected the Applicant’s claim that he discovered financial irregularities or corruption while working for the Company and was being pursued by Gunawan and the General as a result. The Board did not accept that the Indonesian authorities had an adverse interest in the Applicant or that the Applicant faced a risk of any kind upon his return.

24.  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

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

26.  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”.

27.  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

28.  The Applicant failed to attend the court hearing of 30 October 2024 despite a notice of hearing having been sent to him on 15 October 2024 at his latest address advised to the court by the Director on 3 September 2024. The Applicant has also failed to respond to a previous letter sent to him by the court at the aforesaid address on 24 September 2024. In such case, I decided to proceed with this application according to papers already placed before the court.

29.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only stated that: “I would like to reject and review the decision made by Immigration Department on my case. They disregard my dangerous situation.” He then exhibited a copy of the Board’s Decision to the Supporting Affidavit. No other supporting documents were produced.

30.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. 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 four 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 many aspects of the Applicant’s claims and evidence were inconsistent or otherwise difficult to credit and a number of other aspects of the Applicant’s claims also made little if any sense. The Board did not accept the core story of the Applicant and consequently did not accept that the Applicant faced any real or substantial risk of serious or significant harm for the reasons claimed if he were returned to Indonesian in the reasonably foreseeable future.

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 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

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

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