HIDAYAT MUHAMAD TAUFIK alias HIDAYAT MUHAD TAUFIK v. TORTURE CLAIMS APPEAL BOARD

HCAL 545/2023

[2024] HKCFI 2852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 545 OF 2023

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 28-year-old national of Indonesia who arrived in Hong Kong on 1 January 2020 as a visitor with permission to remain as such up to 31 January 2020 when he did not depart and instead overstayed, and some 10 months later on 19 November 2020 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Indonesia he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Desa Kawo, Gilik Pujut Sub-district, Lombok, Indonesia. After leaving school he worked in the construction field before going to Malaysia in 2017 to work in the plantation.

3.  In 2019 he returned to his home in Indonesia, and subsequently borrowed a loan from a local money-lender which he gave to a friend to purchase a car for him, but his friend just disappeared with his money, and later when he was unable to repay his loan, his creditor then sent men to threaten him, and after being beaten by those men on 2 occasions, and with a warning that next time they would kill him if he still failed to repay his loan, the Applicant became fearful for his life and left Indonesia on 31 December 2019 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 25 October 2021 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”).

5.  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 followers upon his return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his loan, that in any event it was a private monetary dispute between him and his creditor only 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 275 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 young adult with working experience to move to other areas of the country 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.

6.  On 3 November 2021 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 20 October 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 February 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it rejected the credibility of his claim of fear of harm from his alleged creditor over his debts that caused him to leave his country to come to Hong Kong to seek protection, and concluded that it is not accepted that he had borrowed any loan as claimed or that he was unable to repay it or that he had ever been threatened or assaulted by any loan shark or that he is at risk of harm from his creditor upon his return to Indonesia that his claim for non-refoulement protection failed on all applicable grounds.

8.  On 4 April 2023 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 forth any proper ground for his intended challenge. 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.

9.  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.

10.  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 18 – 36 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.

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

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 these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and as recently confirmed by the Immigration Department of his subsequent departure from Hong Kong 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