Oby Aguin v. Torture Claims Appeal Board

HCAL 930/2018

[2021] HKCFI 739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 930 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 submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 30-year-old national of Indonesia who arrived in Hong Kong on 18 October 2015 with permission to remain as a visitor up to 25 October 2015 when he did not depart and instead overstayed, and on 16 November 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Indonesia he would be harmed or killed by his father’s creditor over his father’s loan. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bandar Lampung, Lampung, Indonesia. After leaving school he remained residing with his parents in his home district, and worked as a minibus driver to make his living.

3.One day in mid-2013 after his father had gone out, a local loan shark with several of his men came to the Applicant’s home looking for his father for repayment of his loan, and when the Applicant told them that his father had gone out to work, those men then left.

4.The Applicant thereafter called his father on the phone who admitted of owning the loan shark money and that he would take care of the matter, but thereafter the Applicant was unable to contact his father again who had since disappeared.

5.Several days later the loan shark returned with his men looking for his father again, and when he was told by the Applicant that his father had disappeared, the loan shark then left angrily with his men.   

6.As the Applicant was concerned that the loan shark would return again and may harm himself over his father’s debt, he therefore fled from his home to hide in his aunt’s place in a neighboring town, but one day in September 2013 when the loan shark came to his aunt’s home looking for him while he was out, the Applicant felt it was no longer safe to remain in Indonesia, and so on 17 October 2015 he departed for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 20 July 2017 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”).

8.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 father’s creditor and his men upon his return to Indonesia as low due to the absence of any past ill-treatment from them, that there is no evidence of any intention on the part of his father’s creditor to harm him, that it was a private monetary dispute between his father and his creditor 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 258 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 his father’s creditor to locate him.

9.On 2 August 2017 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 22 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 14 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s evidence on his claim vague and without details that it doubted that he was a reliable witness, but found in any event that it was a private monetary dispute between his father and the loan shark without any state or official involvement that state/police protection would be available to the Applicant upon his return to Indonesia as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

11.On 25 May 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, and in his supporting affirmation of the same date he merely stated that he rejected the decision because it disregarded his dangerous situation but without providing any details or particulars or elaboration how it did so, nor did he put forward any other ground for his intended challenge at the hearing of his application despite being invited to do so. As such and in the absence of any procedural unfairness during his process before the Board or any error of law or irrationality in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.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.

13.In the Applicant’s case, 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 his 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.     

14.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.

15.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 19^th day of March 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