Jarwo Edi Miftahun v. Torture Claims Appeal Board

HCAL 2358/2019

[2023] HKCFI 1607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2358 OF 2019

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 33-year-old national of Indonesia who arrived in Hong Kong on 11 January 2017 as a visitor with permission to remain as such up to 10 February 2017 when he did not depart and instead overstayed, and was arrested by police one year later on 25 February 2018. 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 outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Muslim in Kab Lamongan Jatim, Indonesia. After leaving school he worked as a farmer and continued to reside with his parents in his home village.

3.During one religious celebration held in the village in which some villagers gathered to gamble, and in which the Applicant also participated after borrowing a loan from a local money-lender as gambling capital, but after he subsequently lost all of his money and was unable to repay his loan, he was threatened by his creditor to do so with interest within 10 months or else would face serious consequences.

4.However, after 10 months and when the Applicant was still unable to repay his loan, his creditor sent his men to beat him and with threats that he would be killed if he still failed to repay his loan.

5.Fearing for his life, the Applicant in September 2015 departed Indonesia for Malaysia where he stayed for one year before returning to Indonesia in January 2017 but stayed in Surabaya to avoid his creditor.

6.As he was still fearful for his safety, the Applicant departed Indonesia again on 11 January 2017 for Hong Kong where he subsequently overstayed, and after his arrest by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 August 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 27 September 2018 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 creditor 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 them to seriously harm or kill him other than to press him to repay 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 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 areas of the country away from his home district in large cities such as Jakarta where it would be difficult if not impossible for his creditor to locate him.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 2 July 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor over his unpaid debts but found in the absence of any official involvement that it was a private monetary dispute between him and his creditor that state or police protection would be available to the Applicant upon his return to Indonesia to negate any such risk of harm from his creditor that his claim for non-refoulement protection failed on all applicable grounds.

11.On 15 August 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 or in his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision as his life is still at risk of being killed by his creditor over his unpaid debts but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. 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.

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 Board correctly rejected his claim for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 74 of its decision based on relevant COI and with the benefit of hearing the Applicant in his oral evidence and his answers to questions raised of his claim that any risk arising from his private monetary dispute with his creditor without any official involvement will be negated by state or police protection available to the Applicant upon his return to Indonesia, 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.

14.Furthermore, the fact is that it has also been established by the Director in his 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, a decision also confirmed by the Board, 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 accordingly I refuse his leave application.

Dated the 16^th day of June 2023

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