CACV 330/2022
[2023] HKCA 77
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 330 OF 2022
(ON APPEAL FROM HCAL NO 83 OF 2019)
________________________
BETWEEN |
| | Tubagus Yusup | Applicant |
| | alias Tubagus | |
| | alias Tubagus Yusuf | |
| | alias Tubagus Tubagus | |
| | and | |
| | Torture Claims Appeal Board | Putative |
| | | Respondent |
| | and | |
| | Director of Immigration | Putative |
| | | Interested Party |
________________________
| Before: | Hon Kwan VP and G Lam JA in Court |
| Date of Written Submissions: | 26 August 2022 |
| Date of Judgment: | 18 January 2023 |
________________________
J U D G M E N T
________________________
Hon Kwan VP (giving the Judgment of the Court):
1. On 5 August 2022, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 18 August 2022.
2. The applicant is a national of Indonesia. He is 35 years old. He previously entered Hong Kong as a visitor on 7 March 2013 and was arrested for overstaying on 17 April 2013. The applicant then raised a torture claim on the basis that he would be harmed or killed by members of a political party called Indonesian Democratic Party of Struggle (“IDP”) due to some financial dispute and him being an ethnic minority from the tribe Dayak. His torture claim was subsequently rejected on 20 November 2013 and the applicant sought non-refoulement protection on the same basis.
The Director’s decision
3. The Director of Immigration (“the Director”) held a screening interview with the applicant on 15 May 2018 and found no reasonable likelihood that his claimed risk of harm from his enemies is real and foreseeable upon his return to Indonesia, due to the absence of or low intensity and frequency of past ill-treatment from them. The Director also found no evidence of any incidence of discrimination or persecution from any other ethnic groups against the applicant as a Dayak, other than one experience that occurred years ago when he was a small child. His problem with the IDP members was a private monetary dispute. In any event, there was availability of state protection according to official reports produced by various overseas government agencies. The Director was of the view there was no risk of persecution upon the applicant’s return to Indonesia and internal relocation was not unreasonable to him, given that he is an able-bodied adult and it would not be impossible for him to move to other regions of Indonesia.
4. By a Notice of Decision dated 21 May 2018, the Director rejected the applicant’s claims under all applicable grounds including torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5].
The Board’s decision
5. The applicant appealed against the Director’s decision to the Board on 28 May 2018 and an oral hearing was held on 3 August 2018. The Board simply did not accept the applicant’s evidence. It found serious inconsistencies and irregularities in the applicant’s evidence, such as the period of time when the applicant claimed he was employed by the IDP. The Board had no confidence in accepting the applicant’s claims and found them to be embellished, exaggerated and fabricated in part to create a claim to be owed protection. Thus, the Board rejected the applicant’s appeal on 10 December 2018.
The intended judicial review
6. The applicant filed a Form 86 for leave for judicial review on 9 January 2019, no grounds for seeking relief were stated. In his supporting affirmation, which was written in Indonesian without any proper translation (it was translated by the interpreter in court at the hearing before the judge on 2 June 2022), he merely repeated his claims as before without any grounds to challenge the Board’s decision. The applicant did not add anything of substance to support his intended challenge at the hearing.
The judge’s decision
7. The judge reviewed the decisions of the Director and the Board with rigorous examination and anxious scrutiny and did not find any error of law or procedural unfairness in either of them. Nor was there any failure on the part of the Director or the Board to apply high standards of fairness in their consideration and assessment of the applicant’s claim. The judge did not find any reasonably arguable basis to challenge the finding of the Board. As the applicant’s intended challenge does not have any prospect of success, the judge dismissed the leave application on 5 August 2022.
Grounds of appeal
8. In his notice of appeal, the applicant only stated that he wants to challenge the decision of the High Court which he does not agree with, and claimed that the judge could not show any reason for dismissing his application. He did not provide any particular grounds to challenge the decision of the judge.
9. As for his written submissions, the applicant repeated his claims previously made before the Director and the Board that he would be killed by the rival political party IDP over the monetary dispute on his return to Indonesia and that there would be discrimination and persecution on account of his being of the Dayak tribe.
Legal principles
10. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.
11. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.
Analysis and disposition
12. The legal principles mentioned above require the applicant to point out with sufficient particularity the errors allegedly committed by the judge in assessing the decision of the Board. The applicant’s complaints against the Board and the judge’s decision are bare allegations. He failed to adduce any evidence in support of his complaints.
13. It is plain that the applicant has failed to advance any viable grounds of appeal against the judge’s decision. 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. In the present case, the applicant failed to demonstrate there is any error of law or procedural unfairness or irrationality in the Board’s decision, or that the judge was in any error in his review of the decision of the Board.
14. There is no merit in this appeal. We dismiss the appeal accordingly.
(Susan Kwan)
Vice President | (Godfrey Lam)
Justice of Appeal |
The Applicant (Appellant), acting in person
[1] [2022] HKCFI 2398
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.