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

HCAL 1595/2019

[2024] HKCFI 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1595 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 the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 6 May 2019 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 September 2018 (the “Notice”).

2.  He had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.

3.  The Applicant is an Indonesian national. He entered Hong Kong on 4 October 2013 as a visitor and was permitted to remain until 3 November 2013. He overstayed and was arrested on 5 February 2014. On 27 April 2018, he raised a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by members of a motorbike gang upon his return because he was unable to pay compensation for the damage to their motorbikes in a traffic accident allegedly caused by him.

5.  The Applicant, now aged 47 was born in Cilacap, Central Java, Indonesia. He had about 9 years of education, reaching Secondary 3 level. He had around 16-17 years of working experience as a technician, casual worker, and fisherman.

6.  On 3 March 2013, the motorbike driven the Applicant collided with a motorcycle that stopped suddenly in front of him at a road junction. This caused a chain collision involving seven more motorbike behind his. The riders of those motorbikes were gangsters from a local motorbike club known as Kelompok Nusa Kambangan Club King (“KNCK”).

7.  As a result of the accident, the gangsters demanded 70 million Indonesian Rupiah for the damage to their motorbikes. The Applicant could not pay. Out of fear for his safety, he fled from the scene. During the four months prior to his departure from Indonesia in October 2013, he hid himself in Bali and took up employment as a fisherman, spending most of his time at sea. His younger brother told him that the gangsters had visited his parents’ home three times, looking for him and demanding compensation. In each of the visits, the gangsters threatened to kill the Applicant should he return, but they never harmed his family.

8.  The Applicant said that working as a fisherman in Bali was dangerous because many of his co-workers died at work and many of them were criminals who frequently engaged in lethal violence. Hence, the Applicant decided to leave Indonesia for his life. After saving enough money from his work, he flew to Hong Kong on 3 October 2013 and left his daughter to an orphanage because he could not take care of her.

9.  The Applicant considered internal relocation within Indonesia not feasible because the gangsters could find him anywhere within Indonesia with their network. He had never been to major cities like Jakarta or Surabaya and felt he could not safely relocate to either city. In addition, he has no confidence in the effectiveness of the Indonesian police in protecting him from KNCK.

The finding of the Board

10.  The Board accepted that the events as asserted by the Applicant were true and assessed his claim on the basis of the case as he asserted. It found the risk of future harm feared by the Applicant does not come within the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance because it would not be inflicted by or at the instigation of a public official or person acting in an official capacity; and that Indonesia has an appropriate system of criminal law with a reasonably effective and impartial police force and justice system. Hence, it found there are no substantial grounds to believe that the Applicant would face a real risk of being subjected to torture if refouled to Indonesia and rejected his claim under the Torture Risk ground.

11.  It accepted that there is a small but real risk that the Applicant would suffer serious physical mistreatment from members of the KNCK if returned to his home area of Cilicap, but not if on his return he relocates to some other parts of Indonesia. The Applicant is therefore not entitled to protection under BOR 3 Risk ground.

12.  The Board also found he is not entitled to protection under the Persecution Risk ground because the feared harm does not arise from one or more of the reasons set out in the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie for reason of a person’s race, religion, nationality, membership of a particular social group or political opinion.

13.  As for BOR 2 Risk ground, there is no evidence that the Applicant may be deprived of his life by the Indonesian government or that the humanitarian conditions in Indonesia are so dire as to render refoulement a violation of his right to life.

14.  For the above reasons, the Board refused the appeal and confirmed the decision of the Director in his Notice.

The legal principles applicable to judicial review

15.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

16.  The Applicant did not put forward any grounds of application for judicial review in his Form 86. In his supporting affirmation, he complained that the Immigration Department disregarded his dangerous situation. In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm protected under the four applicable grounds if returned to Indonesia. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion

17.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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 a very high standard of fairness. The Board assessed the Applicant’s claim wholly on the basis of the case as he asserted. It was on that basis that the Board found for reasons as stated in paragraphs 10 to 13 above that he is not entitled to protection under any of the four applicable grounds. These are finding of facts and of the law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as he asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on that basis that the Board further found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

18.  For the above reasons, leave to apply for judicial review of the Board’s Decision is refused.

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

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