ANANG EKO ADIWIBOWO v. TORTURE CLAIMS APPEAL BOARD

HCAL 11/2020

[2025] HKCFI 3782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 11 OF 2020

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;

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

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Indonesia who arrived in Hong Kong on 6 January 2018 as visitors with permission to remain as such up to 5 February 2018 when he did not depart and instead overstayed, and was arrested by the police on 17 July 2018. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Indonesia he would be harmed or killed by the family of the victim who was killed in a traffic accident caused by him. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Malang, East Java, Indonesia. After leaving school he worked as a mechanic and a driver in Indonesia and a factory worker in Korea. The Applicant was married and have 2 daughters in his home village.

3.  In January 2015, while driving a minibus, the Applicant hit and killed a man named Badi who was crossing the road. The Applicant took responsibility and was convicted and imprisoned for his crime, but Badi’s family, who had some unknown gang background, continued to make death threats against him to the Applicant’s wife and sister. They also rejected the Applicant’s offer of compensation and apology. After his release from prison, the Applicant fled to Blitar but the threats from Badi’s family persisted.

4.  Fearing for his life, the Applicant fled to Jakarta and stayed there for 3 months before departing Indonesia on 6 January 2018 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 November 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 16 January 2019 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that he would be in danger of being harmed or killed by from Badi’s family upon his return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to harm or kill him, that the Applicant had never suffered any harm from anyone because of the fatal traffic accident, that in any event it was a private and personal 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 262 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 areas of the country away from his home district in large cities such as Jakarta where he has previously stayed without any incident and where it would be difficult if not impossible for anyone to locate him.

7.  On 28 January 2019 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 26 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 December 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s evidence as to his involvement in the traffic accident and his subsequent imprisonment, but found that his evidence of his claim of fear of harm was entirely hearsay and speculations, and that internal relocation would be available to the Applicant upon his return to Indonesia for him to move safely to other parts 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.

9.  On 2 January 2020 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 in which he just stated that he does not agree with the decision but without putting forth 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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real 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.

12.  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.

13.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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