Prastowo Fibber Adi v. Torture Claims Appeal Board

HCAL 792/2022

[2023] HKCFI 2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 792 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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Indonesia who last arrived in Hong Kong on 15 March 2020 as a visitor with permission to remain as such upon repeated extensions up to 28 February 2021 when he did not depart and instead overstayed, and on 1 March 2021 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 one of his clients over their investment/monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sragen, Central Java, Indonesia. After leaving school the Applicant in 2009 when to work in Korea until 2019 when he returned to his home in Indonesia.

3.In May 2019 the Applicant became involved in the marketing of a new vitamins manufacturing company to potential investors in return for commissions, but later when the company was exposed by the police to be a scam, one of his clients a Mr S who had lost his investment demanded for repayment or compensation from the Applicant, and when he was unable to do so, Mr S who was a wealthy and influential businessman became furious and started to make threats against the Applicant.   

4.To avoid further intimidations and harassments, the Applicant in early January 2020 fled from his home to take refuge in his friends’  places in various towns, and in late January 2020 he departed Indonesia for Macau, and from there he then travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 October 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 16 November 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and foreseeable risk of him being harmed or killed by his client Mr S upon his return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from his enemy, that there is no evidence of any real intention of Mr S to seriously harm or kill him other than to press him to repay his debts, 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 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 Mr S to locate him.

7.On 25 November 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 23 May 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 June 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies and implausibility in the Applicant’s evidence that it doubted his claim of fear of harm from Mr S that caused him to leave his country to come to Hong Kong, that the creditability of his claim was further undermined by his failure to raise it upon his first arrival in Hong Kong, that in any event it was a private monetary dispute between him and Mr S 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 that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 18 August 2022 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 to which he just attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral 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.

10.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.

11.In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in his claim if real 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.                

12.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.

13.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.

14.In the premises, as I am for the stated reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is now safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 4^th day of August 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