Supriyadi v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 2519/2018

[2021] HKCFI 296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2519 OF 2018

BETWEEN

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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).  The Director refused the applicant’s claim of non-refoulement protection.  The Board dismissed the applicant’s appeal confirming the decision of the Director.

2.The applicant, born in 1974, is a national of Indonesia.  He last arrived in Hong Kong on 24 January 2014 and was permitted to remain until 23 February 2014 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 10 March 2015, he surrendered to the Immigration Department and lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [17-28] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his father-in-law because he changed his religious belief from Salafi to Nahdatul Ulama, if refouled to Indonesia.  He claimed that the believers of Salafi and Nahadtul Ulama are in bad terms and antagonistic to each other.  In around December 2013, his wife noticed that he had changed his belief.  His father-in-law threatened to kill him if he did not change his belief back to Salafi.  He even pointed a knife at him.  The applicant left Indonesia on 19 January 2014.

The Director’s decision

4.By a notice of decision dated 22 March 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He found that state protection is available to the applicant and internal relocation is a viable option for him.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 3 September 2018.

6.By a decision dated 15 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claimat paragraphs [31-48] of its decision.  In a nutshell, the Board found that the only harm his father-in-law had done was to threaten to kill him on one occasion.  He did nothing further suggesting that he would harm or kill the applicant.  It is highly likely that it was uttered at the spur of moment and his father-in-law had no intention to carry out the threat.  Moreover, the applicant did not report the matter to the police or seek assistance from authorities.  There is no evidence to support his belief that he would not have obtained the assistance needed.  In any event, internal relocation is a viable option to the applicant.

8.Having considered all the evidence and circumstances relied on by the applicant, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 9 November 2018 for leave to apply for judicial review of the decision of the Board. In the Form 86 the applicant wrongly quoted the date of the decision of the Board as 3 September 2018 which was in fact the date of the hearing before the Board.  In his supporting affirmation, he stated that he applied for judicial review against the decisions of the Director and the Board.  I will treat his application as against the decisions of both the Director and the Board and considered the application on this basis.

10.No request for oral hearing has been made.  The application is therefore considered on the papers.

11.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.  In the affirmation in support, he only stated that he still wanted to stay in Hong Kong and that his religious belief is different from his extended family.  He repeated that his life is in danger.

Discussion

12.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

13.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will nevertheless examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

14.In the present case, the Board did not take issue with the applicant’s asserted primary facts and events.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the viability of internal relocation.

15.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16.The applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affirmation to suggest how the Board and the Director erred in the public law sense.

17.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board and the Director.

18.Indeed, the evidence of the applicant can hardly establish that he would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

19.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

20.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, irrational findings, or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

21.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

22.Accordingly, leave to apply for judicial review is refused.

Dated 11 February 2021

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