SUPRIADI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1524/2018

[2021] HKCFI 1224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1524 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Indonesia who arrived in Hong Kong on 13 October 2013 with permission to remain as a visitor up to 12 November 2013 when he did not depart and instead overstayed until he was arrested by the police on 21 September 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Indonesia he would be harmed or killed by the family of a victim who died in a traffic accident caused by him. He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Desa Karangrejo, Kandat, Kediri, East Java, Indonesia. After leaving school he worked in various jobs, and in 2009 he worked as a driver for a travel agency.

3.  One day in June 2013 while he was driving his employer’s clients to the airport, the Applicant’s vehicle struck a motorcycle on which its two passengers were injured, and later one of them died in the hospital.

4.  As a result the Applicant was charged by the police for careless driving for which he was sentenced to prison but was released after several months when he settled the claim for compensation brought by the victim’s family.

5.  Shortly after his release from prison in September 2013, two unknown men came to his home and beat him without saying anything, and it was only after his parents screamed for help when they stopped beating the Applicant and left.

6.  Afterwards the Applicant reported the matter to the police but later when the Applicant found no progress in the police investigation, and when his friend advised him that the attack was probably instigated by the victim’s family in revenge against him, the Applicant therefore fled to Kalimantan to take shelter in his brother’s place, but when he later heard form his mother that some unknown men had come looking for him, he felt it was no longer safe to remain in Indonesia, and so on 13 October 2013 he departed for Kong where he subsequently overstayed, and upon his arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 March 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  While being released on recognizance pending determination of his claim, the Applicant was again arrested by the police on 30 August 2017 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.

8.  By a Notice of Decision dated 9 April 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

9.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by the victim’s family 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 that those 2 men who attacked him were sent by the victim’s family who had after all already settled the dispute with him through a court settlement, that in any event in the absence of any official involvement that state protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows 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 away from his home district in large cities such as Jakarta where it would be difficult if not impossible for the victim’s family to locate him.   

10.  On 20 April 2018 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 4 July 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 13 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted that the Applicant may have been involved in some traffic incident and had had to pay compensation to the victim, but doubted that he had been attacked by the men sent by the victim’s family, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant if needed 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 that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 1 August 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That no lawyer was provided to him for his appeal before the Board;

(2)  That the Board decided the case on assumption without considering the evidence presented by the Applicant;

(3)  That the Applicant was detained at the Castle Peak Bay Immigration Department and was not given the opportunity to produce his documents in support of his claim; and

(4)  That the absence of further evidence to prove his case does not mean that the Board can infer that he had no case.   

13.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

14.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15.  As for his complaints under the other grounds, they are all just some broad and vague assertions of the Applicant without any details or particulars or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how he was not given the opportunity to produce his documents in support of his claim when even in his present application now before me, the Applicant has not produced or identified what documents that he would want to produce during his appeal before the Board or what further representations that he would want to make in respect of his claim. As such I do not find any of them reasonably arguable, 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, nor do I find any reasonably arguable basis for his intended challenge either.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

17.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Indonesia, a decision also 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.     

18.  Having considered the decisions of 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.

19.  Furthermore, the Applicant on 25 March 2021 filed an affirmation to request to withdraw his application because his problem in his home country has been resolved and that he no longer fears to return.

20.  In the premises, and as I am for the reasons given 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 more fear of returning to his home country, I accordingly accede to his request and dismiss 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