Hery Purwanto v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3066/2019

[2025] HKCFI 2386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3066 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 11 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. He appeared before the Court on 21 May 2025.

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 is a national of Indonesia. He arrived in Hong Kong on 27 March 2018 but did not leave and overstayed since 28 April 2018. He was arrested on 12 July 2018, and in due course, the applicant lodged his non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by family members of Suhardi.

6.According to the applicant, he was attacked and suffered injuries to his back as the men believed the applicant hit Suhardi with a truck to death during a traffic accident. He was later threatened with death. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 29 April 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that the level of risk of being harmed or killed by Suhardi’s men was assessed to be low; that low intensity of past-ill-treatment indicated that the future risk of being harmed or killed is was not likely to materialize, and the claimed risk of being harmed was not accepted [11-15]; that state protection was available [16-17]; and that internal relocation alternatives were available and reasonable [18-19].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 15 August 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board found that the applicant’s failure to take advantage of all opportunities to claim protection was behavior detrimental to his credibility [29] and the applicant failed to establish any of the applicable grounds [94-97]. In any event, state protection was available for the applicant [58-62] and internal relocation was available [82-86]. Furthermore, the Board considered the humanitarian grounds and medical reasons, but found that there was no evidence that the applicant’s medical condition reached an advanced or terminal stage such that a withdrawal of medical care in Hong Kong may subject him to acute mental or physical suffering. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 17 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant exhibited the Board’s Decision and Director’s Decision. He also exhibited a 3-page submission containing grounds which can be summarised as follows: the applicant was never provided with proper legal and language assistance; the Board was in breach of procedural fairness; and the quick disposal of non-refoulement cases are unacceptable and discriminatory.

DISCUSSION

13.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).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not mean that the Board was wrong in its decisions.

15.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.”

16.As to the grounds under paragraph 12, the applicant is not entitled to free legal assistance and translation service all the time[1]. The others are his personal views without any evidence in support. They are not valid to challenge the Board’s Decision.

17.The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

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

The applicant appeared in person.