Tubagus Yusup Alias Tubagus Alias Tubagus Yusuf Alias Tubagus Tubagus v. Torture Claims Appeal Board

HCAL 83/2019

[2022] HKCFI 2398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 83 of 2019

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 35-year-old national of Indonesia who arrived in Hong Kong on 7 March 2013 as a visitor with permission to remain up to 6 April 2013 when he did not depart and instead overstayed, and was arrested by police on 17 April 2013. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Indonesia he would be harmed or killed by members of the political party Indonesian Democratic Party of Struggle (“IDP”) over some monetary dispute and/or discrimination and persecution as a member of the minority ethnic tribe Dayak, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born as ethnic Dayak and raised in Kalimantan, Jakarta, Indonesia where he had been discriminated and bullied by members of other ethnic groups when he was a small child.

3.After leaving school he worked as a farmer in his home district, and in 2004 he started to support IDP in Jakarta and assisted the party approving loans to people willing to vote for IDP.

4.In 2010 three of his colleagues in IDP had absconded with the party’s money and disappeared, and as a result the Applicant was directed by IDP to recover loans from voters, and held him personally responsible for the outstanding loans if he failed to recover them, and had on one occasion the party even sent people to threaten and beat him, while he was also summoned by the police for their investigation of his three colleagues who had absconded.

5.Fearing that he would eventually be held liable for the financial trouble IDP was in, the Applicant resigned from the party and returned to Kalimantan, and on 7 March 2013 he departed Indonesia for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 23 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 21 May 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reasonable likelihood that his claimed risk of harm from his enemies as he perceived is real and foreseeable upon his return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any incidence of discrimination or persecution from any other ethnic groups against him as a Dayak other than one experience that occurred years ago when he was a small child, that his problem with IDP members was a private monetary dispute between them 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 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 the country away from his home district in large cities such as Surabaya where it would be difficult if not impossible for anyone to locate him.

8.On 28 May 2018 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 3 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found serious inconsistencies confusions and irregularities in the Applicant’s evidence that it doubted his credibility and rejected his claim of events occurred to him in the past or that he was a person of any adverse interest to any person or group or the authorities prior to his departure of Indonesia or that he left the country for Hong Kong due to any of his claimed fear or that he would face any such risk of harm from anyone upon his return to Indonesia that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

10.On 9 January 2019 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 which he wrote in Indonesian without proper translation and was only translated in court by the appointed interpreter at the hearing of his application which was merely a regurgitation of his claim as before without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing. 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.

11.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.

12.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 19 – 79 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.

13.Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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 5^th day of August 2022.

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