SISWARSO v. TORTURE CLAIMS APPEAL BOARD

HCAL 3203/2019

[2023] HKCFI 1563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3203 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 / the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 25 July 2019 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Indonesia who arrived in Hong Kong on 28 January 2011 as a visitor with permission to remain as such up to 27 February 2011 when he did not depart and instead overstayed, and was arrested by police more than 3 years later on 19 December 2014 for which he was subsequently convicted and sentenced to prison for 15 weeks, and upon his discharge from prison and was referred to the Immigration Department for deportation, he then raised a non-refoulement claim on the basis that if he returned to Indonesia he would be harmed or killed by his business associate over their monetary dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Karang Klesem, Sub-district Pekuncen, Banyumas Regency, Central Java Province, Indonesia. After leaving school he ran his own business, got married and raised a family with 3 children in his home district.

3.  In 1991 he wanted to start a poultry farm business in his home district by approaching a local money-lender named Efendi for financial support, and accepted Efendi’s offer of a large starting capital for the business and in return for 50% of the business profit every year.

4.  As a result the Applicant started his chicken breeding farm for his business, and for the next 6 years he managed to make a profit and to pay 50% thereof to Efendi each year.

5.  However, in 1997 he lost the business after his entire stock died from some disease, and when Efendi demanded for the return of his money, and when he was unable to do so, Efendi allowed him to do so within the next 5 years.

6.  Thereafter the Applicant went to Banyumas Regency to start a chili pepper business in the hope of earning enough money to repay Efendi, but again his business failed in 2002 without enabling him to repay Efendi, and to avoid Efendi and his men, the Applicant moved from place to place for the next several years all over Indonesia.

7.  However, after being located by Efendi’s men on several occasions and was threatened and beaten by them, the Applicant felt it was no longer safe to remain in Indonesia, and so on 28 January 2011 he departed for Hong Kong where he overstayed, and after his arrest by police more than 3 years later in 2014, he then subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 12 May 2017 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 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”).

9.  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 Efendi and his men upon his return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of Efendi or his men to seriously harm or kill him other than to press him for repayment of his loan or that there would still be any adverse interest in him after all these years since he left the country in 2011, 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 258 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Surabaya where it would be difficult if not impossible for Efendi or his men to locate him.

10.  On 24 May 2017 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 3 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 July 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from Efendi over their monetary dispute that caused him to leave his country for Hong Kong, which credibility was further undermined by his failure to raise his claim upon his first arrival in Hong Kong until several years later and only after his arrest by the police, and that in any event it was a private dispute between him and Efendi only without any official involvement that state or police protection would be available to the Applicant upon his return to Indonesia as well as reasonable internal relocation for him to move safely to other part of the country 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 28 October 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, nor did he request any oral hearing for his application.

13.  I should note that his Form 86 was in fact 3 days passed the 3-months period required for the filing of an application for leave to apply for judicial review as stipulated under Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A, but given the relatively insignificance of the delay and that there was in fact an intervening weekend in between the deadline and the filing date of his Form 86, I propose to focus on the merits, if any, of his intended application, but as noted above the Applicant has failed to put forth any proper ground for his intended challenge, 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 or any merits in his intended challenge.

14.  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.

15.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Indonesia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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.

17.  Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as his problem has been resolved and that he just wants to return to his home country.

18.  In the premises, as I am for the given reasons 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 longer any problem for him to return to his home country, I accordingly 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