AGUSSALIM v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 937/2024 [2024] HKCFI 2249 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 937 OF 2024 BETWEEN Agussalim Applicant and Torture Claims Appeal Board and Putative Respondent Director of Immigration Putative Interested Party 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; Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review be refused. Observations for the Applicant: The Applicant is a 31-year-old national of Indonesia who arrived in Hong Kong on 18 July 2022 with permission to work as a foreign domestic helper until the expiration of his employment contract on 18 July 2024 or within 14 days of its early termination, but when his employment was prematurely terminated on 14 September 2022, he did not depart and instead overstayed, and was arrested by police on 3 May 2023 for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Indonesia he would be harmed or killed by his creditor over his unpaid debts. The Applicant was born and raised in Bone, Sulawesi, Selatan, Indonesia. After leaving school he worked as a farmer, got married and raised a family with a child in his home district. In May 2022 he applied to come to Hong Kong to work as a foreign domestic helper, and to meet the expenses he borrowed a loan from a local money-lender to be repaid by monthly installments with interests from his monthly salary in Hong Kong by remittances to his wife in Indonesia. However, after his employment was prematurely terminated in September 2022, and when he was unable to repay his loan for which his creditor threatened on the phone to kill him when he returned to Indonesia, the Applicant became fearful to return to Indonesia and therefore 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 2 January 2024 and attended screening interview before the Immigration Department with legal representation. By a Notice of Decision dated 6 February 2024 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”). 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 creditor upon his return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from his creditor, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his loan, that in any event it was a private monetary dispute between the 2 of them only 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 1.9 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 creditor to locate him. On 15 February 2024 the Applicant filed his appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision while still serving his imprisonment in Pik Uk Prison as he so stated in his Notice of Appeal, but as it was found by the Board that he had signed and dated his Notice of Appeal in the wrong place as required under Section 37ZS (2)(ab) of the Immigration Ordinance, and was returned to him for rectification, which he subsequently did and re-filed to the Board on 28 February 2024, but by then it was already outside the 14-day period required under Section 37ZS (1) of the Ordinance, and in pursuance of Section 37ZT (2) the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal by taking account only of the statement of reasons stated in the application for the late filing, as the law now stands since its amendment on 1 August 2021 (Amended 7 of 2021 s.19). By a Decision dated 22 May 2024 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that the deadline for him to file his Notice of Appeal to be 22 February 2024, that while the first Notice of Appeal received by the Board on 15 February 2024 was within the required period that it had not been properly completed and signed as required by Section 37ZS (2)(ab) of the Ordinance upon which subsection (3) stipulates that no action may be taken in relation thereto, and hence by the time when the Applicant had rectified the situation and re-filed his Notice of Appeal properly signed and completed on 28 February 2024, he was late by 6 days but for which the Board did not find acceptable in the absence of any evidence to otherwise indicate that the Applicant had exercised all due diligence to file his Notice of Appeal within the 14-day period but failed to do so because of circumstances beyond his control under Section 37ZT (3) of the Ordinance. It is of note that the Board did nevertheless proceed to consider the merits of the Applicant’s case, which is as noted above no longer necessary under the Ordinance as amended, and found that his appeal even if allowed its late filing would have no prospect of success, as the Board so stated in [23] of its decision: “While under the Ordinance as amended I am not obliged to consider the merits of the case in determining a late filing application, I note for completeness that the Appellant claims that if returned to Indonesia he will be killed or harmed by a loan shark creditor or his underlings because of his failure to repay a loan. The Director refused the claim, having assessed that based on the fact that the loan shark had made only one verbal threat to kill the Appellant, there was no real risk that the Appellant would face sufficiently serious future harm. Moreover, based on Country of Origin Information, and given that the Appellant had not sought the protection of the police, the Director was not satisfied that state protection would not be available to the Appellant against the harm he claimed to fear; and was satisfied that it would be reasonable and not unduly harsh for him to avoid the localized harm he claimed to fear by relocating to another area of Indonesia. Having considered the material before me, including that provided by the Appellant in the NOA, I am not satisfied that the Appeal has any prospect of success. It appears extremely unlikely that the new information he has provided would result in findings different to those made by the Director. In these circumstances, the detriment to the Appellant in not being permitted to file his Appeal outside the required period is considered to be minimal.” On 13 June 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 as well as in his later written submissions he repeated his non-refoulement claim as before, cited various principles applicable to the assessment and determination of non-refoulement claims under the applicable grounds, and put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows: (1) That the Board’s decision was not right or reasonable as it failed to recognize that the right to life must be protected from extra-judicial killings that the Applicant may face if deported back to his home country; (2) That the Board failed to apply the principle of procedural fairness in its decision and to give reasons justifying the decision; (3) That the Board relied on the source of news not officially recognized or were simply hearsays; (4) That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s application without properly assessing his credibility; (5) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response; (6) That the Board did not provide any concrete reason or show how it came to the conclusion in dismissing his appeal which was only based on information provided by the COI or other websites and which did not tell the true facts of the situation in Indonesia that the Board’s decision is therefore prejudicial to the Applicant; (7) That the Board’s decision for dismissing the Applicant’s appeal by maintaining that he failed to establish a well-founded fear of torture or to establish a genuine and substantial risk that he would be subjected to torture or CIDTP under BOR 3 or failed to establish there is a genuine and substantial risk of him being deprived of his right to life under BOR 2 was irrational; (8) That the Board misdirected itself as to the reasons for concluding that the Applicant faces no real risk of harm if returned to Indonesia; (9) That the Board failed to take into consideration the brutality corruption and human rights abuses that run through those gang groups at all level in Indonesia before coming to the conclusion not to accept the Applicant’s claim on the basis of CIDTP; and (10) That the Board’s findings that there is not a reasonable likelihood or a serious possibility or a reasonable chance or a genuine and substantial risk or a real risk that the Applicant would be targeted for harm for the reasons he claimed or for any other reasons if he returns to Indonesia is unreasonable and illogical. These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board had erred in the decision which did not in fact determine his non-refoulement claim as such, but rather to refuse the late filing of his Notice of Appeal, and of which the Applicant failed to put forward any proper ground to challenge such a decision, nor was he able to do so at the hearing of his application. 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. 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. In the Applicant’s case, as noted above that the Board refused to allow the late filing of his Notice of Appeal for the thorough and detailed analysis and reasoning set out in its decision, and while it may appear somewhat harsh given the relatively insignificant delay and the circumstances of the Applicant being in prison and without legal representation, but the Board in the exercise of its discretion was not in any error in its reasoning as set out in [22] of its decision, and that it also proceeded to consider the merits of the Applicant’s case, not that it was required to do due to the 2021 amendment to the relevant provisions in the Ordinance as noted above, but nevertheless the Board was also correct to find on the factual basis of even the Applicant’s own case that there was no prospect of success in his claim or appeal even if it’s late filing were allowed. As such, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge such findings of the Board in its decision to refuse the late filing of the Applicant’s appeal. Furthermore, as pointed out by the Board, the fact is that it has been correctly 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 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. In the premises, and 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 respective part to apply high standards of fairness in the Director’s consideration and assessment of the Applicant’s claim or the Board’s determination of the late filing of his appeal. For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application. Dated the 3rd day of September 2024 (Chung Lai Fan, Christine) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 3 September 2024 Agussalim Applicant’s ref. no.: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3 September 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 23096 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4/24 (formerly RBCZ 5001873/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1