Cepi Kurniawan v. Torture Claims Appeal Board

HCAL 548/2021

[2022] HKCFI 3113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 548 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent 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 29-year-old national of Indonesia who arrived in Hong Kong on 3 September 2019 as a visitor with permission to remain up to 3 October 2019 when he did not depart and instead overstayed, and was arrested by police more than 3 months later on 26 January 2020. 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 his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ciamis, Pangandaran, West Java, Indonesia. After leaving school he worked in the factory, got married and raised a family with a daughter in his home district.

3.In early 2019 he started his own business raising poultry for sale by borrowing a loan from a local loan shark with interest payable every month, but his business did not fare well and had to be closed down in mid-2019, and when he was unable to repay his loan, the loan shark started to send men to threaten him, and so the Applicant left his home district to hide in Sidaja in Central Java before moving on to Jakarta.

4.In August 2019 he sneaked back to his home district to attend his cousin’s wedding, but when he was spotted by the loan shark’s followers, they beat him and injured his jaw which required medical treatment in the hospital. Upon his discharge from the hospital, the Applicant fled back to Jakarta, and from there he departed Indonesia on 12 August 2019 for Macau, and then to 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 4 June 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 27 August 2020 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 loan shark and followers upon his return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the loan shark to seriously harm or kill him other than to press him for repayment of his loan, that in any event it 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 267 million people spread across a vast territory of more than 1.8 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 part of the country away from his home district in large cities such as Surabaya or Jakarta where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

7.On 2 September 2020 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 28 October 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 April 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from the loan shark over his loan but found that it was a private monetary dispute between them without any official involvement that state or 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 part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

9.On 19 April 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his written submissions dated 29 April 2022 he put forth the following grounds for his intended challenge:

(1)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirements;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  Procedural unfairness in that the Board’s decision to refuse his appeal is unreasonable or irrationality in the public law sense or the result of procedural error or unfairness;

(4)  Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)  Procedural unfairness in that the Board tried to dispose of his case as quickly as possible; and

(6)  Procedural unfairness in the hearing bundle of documents with the majority in English which he cannot read for his appeal before the Board was provided to him late without providing him with sufficient time to prepare due to his limited skill in English and being unrepresented that he was not able to find any reasonably cheap interpreter to assist him for his appeal before the Board which led to an unfair ruling against his credibility despite the fact that he answered all the questions honestly resulting in an unfair hearing.

10.These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fettered its discretion or acted procedurally unfair, or how did it fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable 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.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

13.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing before the Board he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board or that this ground is reasonably arguable either.

14.Furthermore, the fact is that it has been correctly 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.

15.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.

16.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 7^th day of October 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