SUJADI v. TORTURE CLAIMS APPEAL BOARD

HCAL 310/2019

[2022] HKCFI 1142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 310 of 2019

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;

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 25 September 2009 as a visitor with permission to remain up to 25 October 2009 when he did not depart and instead overstayed, and was arrested by police on 14 November 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Indonesia he would be harmed or killed by his creditor over his outstanding debts, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Gubugsari, Pegandon, Kendal, Jawa Tengah, Indonesia. After leaving school he worked as a farmer growing red onions, got married and raised a family with a daughter in his home district.

3.  In 2009 he rented more farmland for growing more crops by borrowing several loans from his neighbor Suyoto, but when he was later unable to repay his loans, Suyoto came with some gangsters to threaten to kill him if he still failed to repay his loans soon. 

4.  Fearing for his life, the Applicant fled from his home village to stay in various places in Kendal, and on 25 September 2009 he departed Indonesia for Hong Kong where he subsequently overstayed, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 28 March 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 19 April 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 the creditor’s followers upon his return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to put pressure on him to repay his loans, 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.  On 2 May 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 8 August 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 31 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found inconsistencies, discrepancies and conflicts in the Applicant’s evidence given in his appeal hearing, which was significantly different from those previously given to the Director that it did not consider him to be a credible witness or accept that he had ever borrowed money from his neighbor or that he had been threatened by his neighbor over his debts or that he feared of harm from his neighbor or gangsters that caused him to flee from his home country for Hong Kong that it rejected his claim and concluded that his claim for non-refoulement protection failed on all applicable grounds.  

9.  On 1 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such 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, I do not find any reasonably arguable basis for his intended challenge.

10.  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.

11.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 77 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

12.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part 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.     

13.  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.

14.  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