Abdi Negara v. Torture Claims Appeal Board

HCAL 2174/2018

[2020] HKCFI 2248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2174 of 2018

BETWEEN

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Indonesia who arrived in Hong Kong on 31 March 2015 with permission to remain as a visitor up to 2 May 2015 when he did not depart and instead overstayed and was arrested by police on 21 May 2015.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Indonesia he would be harmed or killed by the terrorist group ISIS for quitting the group. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sragen, Jawa-Tengah, Indonesia.  In 2012 he was recruited by a group of ISIS operating in Indonesia for training to plant bombs in churches in Jakarta, but when he realized that those bombs were to kill non-Muslims which he did not want to be involved, he therefore left the group in May 2014 to return to his home village.

3.One day in August 2014 one of his friends told him that ISIS were unhappy that he had left the group without their permission and were sending men to look for him, and about a week later while he was not at home, he was told by his mother that two men claiming to be from ISIS had come looking for him, he therefore became fearful that they were looking to harm or kill him, and so he fled to Sumatra and then to Malaysia, and from there he then flew to 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 on 19 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 10 May 2018 the Director of Immigration (“the 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 found no substantial grounds for believing that there will be any real risk of him being harmed or killed by the ISIS upon his return to Indonesia due to the absence of any past ill-treatment from them, that there is no reliable evidence that he had ever joined the ISIS or that they were looking to harm or kill him other than some hearsays and his own speculation, that in any event in the absence of 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 show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 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 part of Indonesia away from his home district in large cities such as Jakarta where it would be difficult if not impossible for those ISIS members to locate him.

6.On 21 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 23 August 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found such serious inconsistencies, discrepancies and contradictions in the Applicant’s evidence that it did not accept that he had ever joined ISIS or that they were looking to harm or kill him as claimed, and that in any event with state/police protection available to him upon his return to Indonesia as well as reasonable internal relocation for him to move safely to other area away from his home district in large cities without any risk of being located by ISIS that his claim for non-refoulement protection failed on all applicable grounds. 

8.On 10 October 2018 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 his supporting affirmation, nor was he able to do so at the hearing of his application when he merely repeated his claim that he cannot return to his home country as his life would be in danger but without putting forward any proper ground for his intended challenge.  As such 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 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 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.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 the Applicant’s claim 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 these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 14^th day of September 2020. 

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