Subakti Eka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 606/2024

[2024] HKCFI 1489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 606 of 2024

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 January 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

3.The applicant, aged 35, is an Indonesian. He last arrived in Hong Kong as a visitor on 13 January 2023 and overstayed since 13 February 2023. The applicant was arrested by the police on 3 May 2023 for overstaying and was sentenced to imprisonment of 15 months on 8 May 2023. The applicant made a non-refoulement claim on 16 May 2023 and 16 June 2023. The claim was made on the basis that, if refouled, he would be harmed or killed by the ex-husband of Ms Linda (“Aldi”).

4.According to the applicant, he began working as a driver for a local wealthy woman called Ms Linda in 2020, whom at the material time was married to Aldi. After Ms Linda divorced Aldi in June 2021, the applicant became close to Ms Linda and fell in love with her in around September 2021. The applicant’s uncle disapproved their relationship since the applicant is a Muslim while Ms Linda is a Hindu.

5.Aldi knew about their affairs in around end of 2021 and accused Ms Linda of having affairs with the applicant. Aldi also threatened to kill the applicant many times and sent people to follow the applicant. In October 2022, the applicant relocated away from his hometown after he was threatened by four persons. Eventually he left Indonesia for Hong Kong.

6.The applicant was of the view that he could not seek protection from the police because Aldi was powerful and rich. He also considered internal relocation not viable because he had no friends/relatives elsewhere and that it would only be a matter of time for Aldi to locate him.

7.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 20 October 2023 (“the Director’s Decision”).

The Director’s Decision

8.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity of past ill-treatment from Aldi indicated a low future risk of harm upon his return to Indonesia [14]; (ii) state protection would be available to him [17]-[18]; (iii) internal relocation would be viable [15], [19]-[23] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[34] or Torture risk [35]-[37].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 10 January 2024, the Board conducted an oral hearing.

11.During the hearing, the applicant told the Board that he had never been threatened by Aldi, but merely received anonymous threatening WhatsApp messages, which he presumed were from Aldi. Regarding the applicant’s claim that he was being followed by people working for Aldi, he told the Board that there was an occasion when people on motorbikes stopped him at a food stall and told him to stay away from Ms Linda, failing which there would be dire consequences. Again, the applicant took no steps to verify whom these people were and merely presumed that they were sent by Aldi. The Board found the applicant’s failure to verify the source of threats damaging his credibility as the threats might come from his uncle, given that he had expressed disapproval to the applicant’s relationship with Ms Linda [28]-[31]. Furthermore, the applicant’s delay in seeking protection in Hong Kong also had adverse implication towards his credibility [32].

12.In any event, taking into account the past action by Aldi, the Board failed to see that the applicant would face a real risk of harm upon return to Indonesia and that internal relocation would also be available to him [34]-[42]. It concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [43]-[46].

13.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

14.The applicant has filed Form 86 on 16 April 2024 to apply for leave for judicial review of the Board’s Decision.

15.In the affirmation in support of his application, the applicant said that he does not agree with the Board and his life will be still in danger if he returns to his home country.

DISCUSSION

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.For those reasons the Board stated above, the Board did not accept that the applicant would be at real risk of harm or being killed by Aldi if he returns to Indonesia. The applicant has raised no valid reason to challenge the Board’s Decision. There is nothing amiss in the Board’s reasoning.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

21.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 13^th day of June 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