ROSIDI LALU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1264/2023

[2024] HKCFI 638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1264 of 2023

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:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 June 2023 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.  As the applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, his application is dealt with 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 is a national of Indonesia. He arrived in Hong Kong as a visitor on 1 January 2020 but had overstayed since 1 February 2020. On 17 November 2020, he surrendered to the Immigration Department and lodged his non-refoulement claim on 4 December 2020. He withdrew his claim on 9 March 2021. After he was arrested by the Immigration Department on 27 January 2023, he requested to re-open his non-refoulement claim on 13 February 2023 and 24 February 2023, which was acceded on 1 March 2023.

5.  In short, the applicant’s non-refoulement claim is on the basis he would be harmed or killed by a loan shark (named “Ridwan”) due to a loan dispute. According to the applicant, in around March 2016, he borrowed a sum of 200 million Rupiahs from Ridwan, whom he knew was a loan shark, to defray his mother’s medical expenses and to establish a food business. Whilst the business went well initially and he was able to make timely payments to Ridwan, it was shut down due to a major earthquake in the region causing significant revenue loss in around April 2017. He was therefore unable to repay the loan from August 2017 onwards and fled his home town to avoid Ridwan.

6.  In around March 2018, he returned to his hometown to stay with his paternal aunt as he ran out of money. Two months later, Ridwan together with two henchmen came to the applicant’s aunt’s home and gave the applicant a grace period of one month to repay the loan. However, he was unable to secure the necessary funds for repayment and was beaten by Ridwan and his henchmen when they came again to the applicant’s aunt’s home in around June 2018. Before they finished assaulting him, Ridwan threatened to kill him if he failed to settle the outstanding debt as soon as possible. To avoid Ridwan, he moved to his maternal aunt in around July 2018. However, Ridwan was able to track him down but the applicant managed to hide in one of the bedrooms when Ridwan and his henchmen barged in. In light of the situation, he sought shelter from various places from July 2018 to late 2019 and was able to avoid detection by Ridwan. Fearing he might eventually be discovered by Ridwan, he made arrangements to come to Hong Kong. Details of the applicant’s claim are set out at [7] of the Notice of Decision dated 17 April 2023 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

b.  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”);

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

d.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In essence, the Director found that: (i) the absence or low intensity and frequency of ill-treatment from Ridwan in the past is indicative of a low future risk of harm to the applicant, such as he was only physically attacked once by Ridwan and his henchmen; and taking into account the level of severity of threats he had experienced thereafter; it indicated the risk of harm from Ridwan was not as substantial and imminent as the applicant claimed [12] – [15]; (ii) state protection was available which further lowered or negated the level of risk from Ridwan [17] – [19]; and (iii) internal relocation was a viable option [21] – [22].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 19 June 2023, the Board conducted an oral hearing for his appeal, during which he elected to testify and answered questions from the Board.

10.  In the first instance, the Board made an adverse finding on the applicant’s credibility as he had failed to take advantage of all available opportunities to seek non-refoulement protection after arriving in Hong Kong [28]. It found his absconding and failing in reporting to the Immigration Department upon being released on recognizance and his conduct of evading detection in Hong Kong were examples of behavior that were detrimental to his credibility [26] – [27].

11.  Despite the above findings on credibility, the Board was still willing to accept the factual matrices of his claim, i.e. he was targeted by Ridwan for failing to repay the loan and his subjective fear of being harmed by Ridwan and his henchmen, if he was refouled to Indonesia [42]. However, the Board found there was no reliable evidence from the applicant to show that: (i) he would be harmed or killed by Ridwan if refouled as the past incidents show that his creditor and his henchmen were likely to pressure him into repayment rather than attempting to kill him [43(1)]; (ii) his dispute with Ridwan is localized and he was able to live safely outside his home town for over a year, which indicated there was a low chance Ridwan would locate him [43(2)]; (iii) on his own facts, he was only harmed by Ridwan on one occasion [43(3)]; and (iv) it was his own volition not to seek assistance from the police notwithstanding based on credible and objective COI; and there were adequate organizations that could provide protection [43(4)]. There was no evidence that the state was involved [77] or state acquiescence [80] and internal relocation is a viable option open to him [82] – [89].

12.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

13.  The applicant has filed Form 86 dated 24 July 2023 for leave to apply for judicial review of the Board’s Decision.

14.  In support of his application, the applicant has raised no specific ground in his affirmation.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

17.  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.”

18.  The Board had, for the reasons given in paragraphs 9 and 10, dismissed his appeal for the reasons that he failed to establish, by evidence, that he would be subjected to any of the applicable risk if he returns to Indonesia.

19.  There is no valid ground from the applicant to challenge the Board’s Decision.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

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