Wibawa I Made Gina Surya v. Torture Claims Appeal Board

HCAL 113/2024

[2024] HKCFI 1440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 113 OF 2024

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 27-year-old national of Indonesia who last arrived in Hong Kong on 28 April 2023 as a visitor with permission to remain as such up to 28 May 2023 when he did not depart and instead overstayed, and was arrested by police on 10 June 2023.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Indonesia he would be harmed or killed by his paternal uncle over a land dispute within their family.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kebonjero, Bali, Indonesia.  After leaving school he worked as a housekeeper in his home district where his father and his paternal uncle inherited some land from his grandfather in equal share and on which they both had built their own houses, but that his paternal uncle always demanded to have a bigger share of the land which had led to constant disputes and conflicts within the family.

3.On 28 April 2023 the Applicant travelled to Hong Kong for sightseeing, during which he was informed by his mother in Indonesia that his paternal uncle had threatened to kill the Applicant if the Applicant’s father failed to yield to his demand for more land, and hence the Applicant was advised not to return to Indonesia to save his own life, and so the Applicant overstayed in Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 July 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 25 August 2023 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”).

5.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 paternal uncle over their land dispute upon his return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from his paternal uncle, that there is no evidence of any intention of his uncle to harm him let alone to kill him at all, that in any event it was a private land dispute between them and within the family 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 279 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 his uncle to locate him.

6.On 11 September 2023 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 17 November 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 28 December 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence and no credible evidence of any threats to him or any member of his family from his paternal uncle over any land dispute within their family that it rejected the credibility of his claim of fear of harm from his uncle that caused him to overstay in Hong Kong to seek protection, and concluded that he had failed to establish a case that he would face any real chance of any serious harm from his uncle upon his return to Indonesia in the reasonably foreseeable future for any of his claimed reasons that his claim for non-refoulement protection failed on all applicable grounds.    

8.On 10 January 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) That the Board failed to properly consider the Applicant’s claim;

(2) That his lawyer from DLS did not help him with his claim and spent most of the time sleeping; and

(3) That the Adjudicator dismissed the Applicant’s claim with bad judgments.       

9.These are however all just bare and vague assertions of the Applicant 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 Adjudicator fail to consider his claim properly, or how did his lawyer from DLS fail to help him with his claim.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge, 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 merits in his intended application either.

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 the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Indonesia, a decision also agreed and 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.                

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.Moreover, the Applicant recently on 26 March 2024 filed an affirmation requesting to withdraw his application as he has no more problem returning to his home country.

14.In the premises, as I am for the given 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 of no more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 30^th day of May 2024

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