ANGGI LA v. TORTURE CLAIMS APPEAL BOARD

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 application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Indonesia who arrived in Hong Kong on 25 February 2019 as a visitor with permission to remain as such up to 27 March 2019 when he did not depart and instead overstayed, and on 16 April 2019 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 the captain of the ship in which he worked over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Samarinder, Kalimantan, Indonesia. After leaving school he worked as a casual worker on ships for various shipping companies to make his living.

3.  In 2018 he was working on the ship “Samudra” of the shipping company PT Sim which sailed between Papua and Sulawesi, during which he had a dispute with the ship captain Nasution who failed to pay his salary, and when the Applicant pressed for payment, the captain became furious and threatened to kill him, and afterwards when the Applicant tried to break into the captain’s cabin to steal but was discovered by the captain who then tried to attack him, but the Applicant managed to jump over board and made his escape.    

4.  After the incident the Applicant became fearful for his safety and therefore departed Indonesia on 25 February 2019 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 September 2019 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 7 November 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 assessed the level of risk of harm from the ship captain Nasution upon his return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Nasution to seriously harm or kill him other than some angry words and empty threats during their quarrels, that in any event it was a private monetary dispute between just the 2 of them 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 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 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 anyone to locate him.

7.  The Applicant never lodged any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision under Section 37ZS(1) of the Immigration Ordinance, but on 26 March 2021 he filed a Form 86 with the Court for leave to apply for judicial review of a decision of the Board which he dated 20 August 2019, and no ground for seeking relief was given either in his Form or his supporting affirmation of the same date to which he did not attach a copy of the decision being appealed against as required under by Section 37ZS(2)(b) of the Ordinance, nor did he put forward any proper ground for his intended challenge either in those documents or at the hearing of his application.

8.  The right to appeal to the Board to challenge a decision of the Director is set out in Section 37ZR of the Ordinance which provides as follows:

“Appeal

A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under –

(a)   section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);

(b)   section 37ZI(1)(b) (decision rejecting a torture claim); or

(c)   section 37ZL(1) (revocation decision made by an immigration officer).”

9.  In the present case, the Board has confirmed by a letter dated 16 July 2025 that no appeal has ever been lodged by the Applicant under Section 37ZR as provided above, and hence there is no decision by the Board on his non-refoulement claim, while the Applicant also confirmed at the hearing of his leave application before the Court that he did intend to appeal against the Director’s decision but did not know that he should do so by way of appeal to the Board as noted above since he was unrepresented and not aware of the relevant rules, and that instead he mistakenly thought that he should do so by way of applying to the Court for a judicial review of the Director’s decision.

10.  It is clear from the Immigration Ordinance that there is a two-tier administrative structure for the processing and screening of non-refoulement claims under the Unified Screening Mechanism (“USM”) in place since 2014, with the first tier by an immigration officer on behalf of the Director, and the second tier by a qualified member of the Board, and hence a non-refoulement claimant who is not satisfied with the Director’s decision should appeal to the Board under the second-tier structure, and only thereafter if he wishes to challenge the Board’s decision that he can do so by seeking leave from the Court to apply for judicial review.

11.  As such, and without having gone through the second tier of the screening process of his non-refoulement claim as provided under the USM, and in the absence of any decision by the Board on his non-refoulement claim, there is simply no legal basis for the Applicant in his present application to seek leave from the Court to apply for judicial review of the Director’s decision under the Immigration Ordinance.

12.  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, 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