Didik Sugiono v. Torture Claims Appeal Board

HCAL 1489/2022

[2023] HKCFI 1626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1489 OF 2022

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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 December 2021 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of Indonesia who arrived in Hong Kong on 25 April 2019 as a visitor with permission to remain as such up to 19 June 2019 as extended when he did not depart and instead overstayed, and was arrested by police more than 1 year later on 7 October 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 girlfriend’s father who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in East Java, Indonesia. After leaving school he farmed on his family’s land, got married and raised a family with a daughter in his home district, but in 2015 he separated with his wife and lived apart from his family.

3.In 2017 he went to Bali to look for work, and subsequently met and formed a relationship with a girl from a local wealthy and influential family but which was however disapproved by her family due to their different religions.

4.After one confrontation between the Applicant and his girlfriend’s father in 2019 when he refused to end his relationship with his girlfriend as demanded by her father who then became furious and threatened to kill him, and proceeded to punch and kick him that his face was injured and required medical treatment in the local hospital.

5.After the assault the Applicant became fearful for his life, and so on 24 April 2019 he departed Indonesia for Hong Kong where he subsequently overstayed, and upon his arrest by the police more than one year later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 May 2021 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 30 July 2021 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no evidence of any real risk of him being harmed or killed by his girlfriend’s father upon his return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of his girlfriend’s father to seriously harm or kill him, that in any event it was a private dispute between the 2 of 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 275 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 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 anyone to locate him.

8.On 10 August 2021 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 16 November 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 December 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of dispute with his girlfriend’s father over their relationship but found the ill-treatment that he received on one occasion was not of such severity that would cause him to leave his country to come to Hong Kong, that the credibility of his such claim was further undermined by his failure to first raise it upon his arrival until more than one year later and only after his arrest by the police, and that in any event his problem with his girlfriend’s father was a private relationship dispute between the 2 of 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 areas of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable ground.

10.On 13 December 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Adjudicator of the Board reached the decision wrongly in assessing his non-refoulement claim in that the decision was not reasonable or fair as required by the Wednesbury test in failing to recognize that his right to life must be protected by the criminal law from extra-judicial killings that he may face if deported to his home country;

(2)  That the Adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as appeal;

(3)  That the Board failed to appreciate or give proper importance or weight to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)  That the Board failed to take into account the argument that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be held liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect which is a clear case of unfair attitude by the Board which in itself is enough to render its decision void;

(6)  That the Board failed to attain high standard of fairness in failing to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organizations have complied reports on the matter which stated testament to the Applicant’s assertions that the Board’s decision should be considered unreasonable in the scope of public law.

11.By then the Applicant was however out of time with his application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12.As the last day of the 3 month-period for him to file his Form 86 fell on 2 March 2022, the Applicant was therefore more than 9 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of more than 9 months must be considered as very substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and at the hearing of his application he claimed to have been detained at Tuen Mum in November 2022 during which he did not know how to proceed with his intended application, but was unable to provide any further details or evidence to corroborate his assertions.

14.The record shows that the Board’s decision was sent on the same day of 2 December 2021 to his last reported address without being returned through undelivered post, which was well before his claim of being detained in November 2022 which even if true certainly cannot justify his such serious delay. As such I am not satisfied that the Applicant has provided any good or valid reason for his serious delay.

15.As for the merits, if any, of his intended application, those grounds put forward by the Applicant as noted above are however all just vague and bare assertions of his containing a few key words or 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 was the decision unfair or unreasonable, or why would State Acquiescence be relevant to his claim, or when had he ever been tortured by state law enforcement agencies or politicians or that he would face extra-judicial killings if refouled to his home country when even on the factual basis of his own case that his claimed risk arose only from his private relationship dispute with his girlfriend’s father that none of his proposed grounds are relevant to his case or were elaborated or presented with any particulars or specifics by the Applicant that I do not find any of them reasonably arguable for his intended challenge, nor do I find any merits in his intended application.

16.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.

17.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.

18.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.

19.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 23^rd 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