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HCAL 1938/2019
[2024] HKCFI 3459
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1938 of 2019
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Andri Riawan |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
1. Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 10 July 2019 for leave to apply for judicial review of an unidentified decision dated 28 December 2018 (the “leave application”). In his supporting affirmation, he annexed a copy of a decision of the Torture Claim Appeal Board / Non-refoulement Petition Office (the “Board”) dated 25 June 2019 (the “Decision”). The Board’s enquiries revealed that the Director of Immigration (the “Director”) made a decision in a Notice of Decision dated 12 September 2018 (the “Notice”). Other than the Board’s Decision and the Director’s Notice, this Court could not find any decision in respect of the Applicant in the non-refoulement context. At the hearing, the applicant confirmed that he wished to review the Board’s Decision dismissing his appeal against the Director’s Notice refusing his claim for non-refoulement protection. Accordingly, leave was granted to amend his Form 86 to give effect to his above intention.
Background
2. The Applicant is an Indonesian national. He last entered Hong Kong on 23 December 2016 and was permitted to remain in Hong Kong until 22 January 2016. He overstayed and surrendered to the Immigration Department on 2 February 2017. He made a non-refoulement claim by way of written submissions dated 20 June, 10 July and 27 September 2017. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His application was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now seeks leave to review that Decision.
The Applicant’s case
3. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview (the “ROI”) in the presence of his lawyer. In gist, he claims he will be harmed or killed by his uncle because of a land dispute, if he is returned to Indonesia.
4. The Applicant, now aged 32, was born in Tegal, Central Java, Indonesia. He is single. His parents and his three siblings are living in Indonesia. He had received formal education for twelve years and had six and half years’ working experience in Indonesia and Taiwan.
5. In 2015-2016, his grandmother made a will to distribute a piece of land amongst her two sons and two daughters. Since she had been living with his father’s family, his grandmother left a larger portion to his father as a token of appreciation. One of his aunt’s husband, ie his uncle, was angry about the arrangement. Despite his protests, his grandmother did not change her will. In early 2016, the Applicant’s family and his uncle had a negotiation in his family home. In the heat of argument, his uncle took out a cleaver and tried to hurt his father. To protect his father, the Applicant held the blade with his bare hand and suffered injury. To defend himself, he took a cleaver and fought back. His neighbours intervened and stopped the fight. Both the Applicant and his uncle were injured. The Applicant was hospitalised for two days. His uncle, who was also hospitalised and suffered a permanent scar on his chin, said he would revenge on the Applicant. After his discharge, the Applicant relocated to Bekasi for three months as he feared that his uncle, who had friends with mafia background, would revenge. He lived with his best friend in Bekasi and learnt that his uncle was looking for him. He therefore went to work in Taiwan in April 2016 to avoid his uncle. He returned to Indonesia in July 2016 and hid himself in Lebak Bulus. After his family told him that his uncle still had a grudge and would kill him, he left Indonesia on 23 November 2016 and came to Hong Kong.
6. He does not believe that the Indonesian authorities and police could protect him, as they are corrupt. He also thinks that they would not intervene because that is a family dispute between him and his uncle. He does not believe internal relocation viable, as he does not feel safe in Indonesia in general.
The finding of the Board
7. The Applicant testified before the Board. The Board accepted that he and his uncle had been involved in a physical altercation when he tried to defend his father in a land dispute and that both he and his uncle sustained injuries as he described.
8. It found the Applicant’s evidence regarding his whereabouts following the assault and before his final departure from Indonesia and his account of his uncle looking for him in Bekasi vague and inconsistent. At the hearing, he told the Board that while he was living with his best friend in Lebak Bulus his uncle went to Bekasi to look for him. At that time his best friend went to Jakarta to make a delivery and randomly met his uncle’s friends in the street. His best friend was threatened and disclosed his whereabouts in Bakasi to them. Then, his best friend called him and told him it was not safe in Bekasi. However, in his NCF, he said he was in Taiwan when he heard about his uncle looking for him in Bekasi. He explained the inconsistency saying that he went to Taiwan from Bekasi and that it was after his return from Taiwan that he went to Lebak Bulus. The confused and inconsistent account caused the Board to have concerns about the plausibility of his best friend’s encounter with his uncle’s men in Jakarta.
9. The Board noted that the Applicant’s evidence as to his uncle’s profile had changed over the course of his non-refoulement claim from being a farmer with friends who had mafia background to being a thug who to beat up people for money. His evidence about his uncle was largely based on hearsay. On that premise, the Board was not satisfied that his uncle was a thug or had friends with mafia background, and that his uncle and his friends had not searched for him and vandalised the place he used to live, as he claimed for the first time at the hearing.
10. The Board found that although the cause of assault was based on the land dispute between his father and his uncle, his father never experienced any harm or threats from his uncle since the fight in 2016. Moreover, the Applicant claimed that he had lost contact with his family in 2017. The lack of any apparent ongoing issues regarding the land dispute led the Board to question whether his uncle would seek to cause him any serious harm in the future.
11. On the basis of objective country of origin information (“COI”), the Board found effective state protection was available in Indonesia. It was only the Applicant’s choice not to seek such protection. Furthermore, it found the Applicant could avoid the risk of harm by relocating to other areas in Indonesia, such as Jakarta.
12. In conclusion, the Board found that there could not possibly be any substantial grounds for finding that the Applicant faced any real risk of ill-treatment if refouled to Indonesia. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.
Legal principles applicable to judicial review
13. The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
14. The Applicant did not advance any grounds for review in Form 86. In his supporting affirmation, he reiterated that if he returned to Indonesia, his life would be in danger, as his uncle would kill him. Hence, he would like to stay in Hong Kong until the problem in Indonesia was resolved. After the above legal principles were explained to him, the Applicant confirmed he had no complaints above errors of law and left it to the Court to look for such errors for him. He also confirmed he had no complaint about procedural unfairness or irrationality. He only repeated his fear of harm if returned to Indonesai.
Overall scrutiny
15. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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 on the basis of the centerpiece of his case as he asserted, though it rejected some of his evidence about his uncle looking for him and vandalizing the place where he stayed. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant had not established the factual basis to support his claim to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed findings of facts and of the law. Insofar as they are findings of the law, they are absolutely correct. Insofar as they are findings of fact, they are 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. The Court could detect no error of law in the Decision or procedural unfairness in the making of 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
16. Accordingly, leave to amend the leave application is granted, but the leave application as amended is refused.
Dated the 9th day of December 2024
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(Seline Sze) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 09/12/2024
Andri Riawan
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 09/12/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13563/18/9/324/I1472
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3442/18 (Formerly RBCZ 11657/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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