Tjhai Tet Liung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1515/2019 [2024] HKCFI 1517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1515 of 2019

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 present 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 5 March 2019 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”).

2.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.

3.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

4.The applicant, aged 53, is an Indonesian.  He arrived in Hong Kong as a visitor on 6 January 2007 and he overstayed since 14 January 2007.  He was arrested by the police on 30 September 2016.  The applicant first lodged his non-refoulement claim on 24 October 2016, but he withdrew his claim subsequently on 3 August 2017.  On 5 September 2017, the applicant applied to re-open his non-refoulement claim.  The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”) because of the outstanding loan.

5.According to the applicant, in or around May 2003, he started his business for sale of refrigerators and television.  He borrowed a loan from the creditor, who was also his ex-employer, to finance his business.  Yet, his business did not perform well.  When the creditor realised the poor performance of the applicant’s business, he demanded immediate repayment of the loan.  In or around October 2003, the creditor’s brother came to the applicant’s home demanding repayment for half of the loan.  He allowed the applicant an extension of time for repayment upon his request.  In May 2004, the creditor’s brother came to the applicant’s home again demanding repayment for half of the loan.  He threatened to hit the applicant after he was told that no repayment could be made, but nothing eventful happened eventually.

6.On 20 November 2006, the creditor came to the applicant’s home demanding repayment.  When the applicant told him that he was unable to pay, the creditor summoned two men by phone.  The two men then assaulted the applicant with knives, resulting injuries to his waist.  The creditor left after death threatening the applicant.  The applicant went to a clinic for treatment of his wounds.  He was prescribed with some painkillers and anti-inflammatory drugs, but was not hospitalised.   

7.The applicant did not report the assault to the police because he considered himself at fault for failing to repay the loan.  Yet, a passer-by saw the happening of the assault and reported to the police.  Subsequently, the creditor was arrested and sentenced to imprisonment for five years.

8.In December 2006, the applicant closed down his business and left for Hong Kong in January 2007.  He made a non-refoulement claim on 24 October 2016, but withdrew it on 3 August 2017 because he needed to return to Indonesia to obtain documents to prove he was not married, so that he could proceed marrying his girlfriend in Hong Kong.  He also thought the creditor might not chase him for loan repayment after all those years.  However, on 16 August 2017, the applicant was informed by his brother that two strangers were patrolling in the vicinity of his home and he believed they were the creditor’s underlings. The applicant therefore applied to re-open his non-refoulement claim on 5 September 2017.

9.The applicant was of the view that he could not seek protection from the police because they would not bother handling a private debt dispute and that it was his fault for failing repayment. He considered internal relocation within Indonesia not viable as well because the creditor could locate him anywhere within the country given that he was powerful.  Furthermore, he also had no relatives elsewhere in Indonesia.

10.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 13 December 2017 (“the Director’s Decision”).

The Director’s Decision

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

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

b.  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”);

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

d.  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”).

12.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the past behaviours of the creditor showed no real intention to severely harm or kill the applicant, so that his perceived harm was not as serious and imminent as claimed [13] - [14]; (ii) state protection will be available to him upon his return [16] - [21]; (iii) internal relocation is viable [15], [22] - [27] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [28] - [33], Persecution risk [34] - [39] or Torture risk [40] - [42].

The Board’s Decision

13.The applicant appealed the Director’s Decision to the Board.  The Board considered that the appeal can be justly determined without a hearing and the case was therefore proceeded on such basis [9].

14.The Board found that the creditor had no real intention to inflict severe bodily or mental harm on the applicant.  The fact that the creditor was imprisoned for his wrongdoings also indicated that state protection was available to the applicant.  Meanwhile, the applicant’s decision to make a non-refoulement claim only after more than ten years when he was caught indicated he did not face a real and imminent risk [31] - [38].  In any event, there was no reliable evidence from the applicant regarding his business, the loan and his encounters with the creditor [51] - [59].

15.Based on such findings, the Board 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.  Furthermore, internal relocation was also available to the applicant [61] - [94].  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

16.The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

18.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).

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

20.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.”

21.There is no complaint that the Board did not hold a hearing for the applicant’s appeal.  As the Board had raised no credibility issue on the applicant’s alleged facts, there is nothing amiss for the Board not holding a hearing for the appeal.

22.For the reasons given by the Board as set out above, the Board was entitled to form its views and conclusion that the applicant will not be subjected to any of the applicable risks if he returns to Indonesia.

23.The applicant has raised no valid reason to challenge the Board’s Decision.

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

CONCLUSION

25.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 18^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