ISPANDI GUNAWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2364/2019

[2025] HKCFI 114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2364 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 11 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. However, he was absent at the hearing on 9 December 2024. I shall deal with his application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 40, is an Indonesian. He last arrived in Hong Kong on 11 May 2017 as a visitor and had overstayed since 16 May 2017. The applicant surrendered to the Immigration Department on 28 August 2017 and he made a non-refoulement claim on 15 and 16 May 2018. The claim was made on the basis that, if refouled, he would be harmed or killed by his brother because he refused to convert from Islam to Christianity.

5.  According to the applicant, he and his family were Muslims. In 2010, his brother converted to a Christian, after which he started to coerce the applicant to believe in Christianity. Since 2014, his brother became more aggressive and often had endless argument with the applicant on such matter. In 2015, he even injured the applicant by throwing a glass plate at him. Shortly thereafter, the applicant relocated away from his hometown. Yet, he still encountered his brother’s friends, who were armed with guns. When the applicant returned to his hometown in 2017, his neighbor advised him to leave as soon as possible because his brother had threatened to kill him. Eventually, the applicant left Indonesia and arrived in Hong Kong on 11 May 2017 after a short stay in Macau.

6.  The applicant was of the view that he could not seek protection from the police because they were corrupt and that they took no action when the matter was reported to them previously. He also considered internal relocation not viable because his brother could easily obtain information of his whereabouts from his friends and relatives.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 26 July 2018 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

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

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from his brother indicated a small future risk of harm upon his return to Indonesia [13]-[14]; (ii) the applicant’s return to his hometown in 2017 was inconsistent with the conduct of someone genuinely in fear [15]; (iii) there was no evidence showing that his brother was as influential as he claimed [16]; (iv) state protection would be available [17]-[20] and (v) internal relocation would be viable [21]-[23].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 26 March 2019, the Board conducted an oral hearing.

11.  The Board had considered the country of origin information in relation to state protection, religion conversion and internal relocation [48]-[55]. The Board found the core of the applicant’s claim lacked credibility and reliability due to the inconsistencies of his evidence. The Board further found it implausible that the applicant would have returned to his hometown if he was in extreme fear from his brother. His claim about the use of black magic by his brother was also rejected as it contravened Christianity [58]-[62].

12.  Based on such findings and given that the matter was purely domestic in nature with no evidence of state involvement, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [25]-[39], [65]-[72]. Furthermore, internal relocation would be available [74]-[75].

13.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 15 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

19.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

20.  There is no reason that the Court should interfere with the Board’s finding of the facts.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.