Siti Munawaroh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL740/2017

[2018] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 740 of 2017

BETWEEN

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 Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is an Indonesian national who first arrived in Hong Kong on 7 November 2009 and was permitted to remain until 19 January 2011 or within two weeks of the contract termination whichever is the earlier.  Her contract was prematurely terminated on 25 February 2010 but she did not leave Hong Kong on 12 March 2010 as required.  She was arrested by the police on 6 March 2011 for overstaying.  She then lodged a non-refoulement protection claim but she stopped reporting as required and was rearrested in August 2015; she had to apply to reopen her claim.  It was rejected by the Director of Immigration (“the Director”) on 5 February 2016 and 3 August 2017. She lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 29 September 2017.

2.The applicant then filed a notice of application of leave to apply for judicial review on 9 October 2017 and requested an oral hearing which was set down for 9 March 2018; she appeared in person after her legal aid application was refused.

3.The basis of the claim was that she would be harmed or killed by her own family and fellow villagers because she had converted to Christianity in 2009.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, there is no need to repeat it here.

4.Her father is a farmer and Javanese Muslim cleric in the Mosque in her home village; his position in the Mosque is a hereditary one passed down from generation to generation.  The applicant claims her family are religious fanatics and follow the Muslim law fanatically, believing it is a sin for a Muslim to convert to another religion and those who do must be punished and any family member who does is disowned.  Between 2004 and 2006 she worked in Singapore and attended a Protestant church with her employer’s children and then went to work in Hong Kong and attended a Christian church with her employer before finally converting to Christianity and being baptised in 2009.

5.She returned home in September 2009 after her employer terminated her contract and told her family of her conversion to Christianity but hoped they would accept it and forgive her.  They incarcerated her in a room without food and drink for days, leading her to believe they would kill her eventually.  She refused to convert back to a Muslim so her father told her to leave immediately.  She went back to the employment agency and remain there for one month before going back to Hong Kong.

6.She tried to keep in contact with her family but they refused to forgive her and they told her that the villagers had said that if she came back they would burn her alive because she had disgraced the whole village and her father.  The family changed their phone number and she has not had contact with her father since June 2010.  The applicant claims that she cannot live anywhere else in Indonesia due to a lack of family financial support nor can she live openly as a Christian because she will be harmed.

7.The Director and the adjudicator of the TCAB analysed the applicant’s claim under all applicable grounds;

(a)  risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  She set out the law and key legal principles applicable to the four grounds.  She set out the applicant’s evidence as well as relevant, up-to-date and objective Country of Origin information (“COI”).  The adjudicator found there was available State protection as well as the possibility to relocate internally to larger cities in Indonesia where there are large communities of Christians or in areas of Indonesia where Christians are in the majority such as Papua and North Sulawesi.

9.The adjudicator believed the applicant’s evidence but found that on her own facts she had fallen far short of fulfilling the requirements to show she was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk. She had not been seriously ill-treated or tortured by her father or family or anyone.  She was not the target of the State.  There was no evidence to show there was a substantial risk of being subjected to any ill-treatment.

10.As the adjudicator said, as the daughter of the Muslim cleric growing up in that village she must have known all her life that if she chose to change her religion, what the consequences would be.  As the Muslim cleric of the village mosque, her father cannot be blamed for not allowing her to remain in his home.  She should have expected nothing less of him.  They may not have forgiven her but they did not harm her or target her after she left the village.  The Director had come to the same conclusion and findings; the adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

11.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the Director’s and adjudicator’s decision to be without fault.  They analysed material, claims and evidence carefully.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

12.After a reading of the applicant’s affirmation, it would appear that the applicant has the following grounds against both the decision makers.  There are no particulars in her affirmation for any grounds.

13.The first ground is that there was a failure by both to conduct sufficient enquiry into relevant COI and a cherry picking of COI.  With a lack of particulars from the applicant there is no merit in this ground particularly when both decision-makers clearly refer to objective, relevant and up-to-date COI.

14.In the second ground the Director and adjudicator are said to have failed to consider the extended concept of State acquiescence.  This applicant did not rely on the extended concept of State acquiescence.  The applicant did not make a report to the police or any authority in Indonesia.  This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.  There is no merit in this ground.

15.In the third ground the Director and adjudicator are said to have failed to consider the psychological impact of the threats from the applicant’s family and fellow villagers.  This was not part of her case nor was there any obvious evidence that she suffered any psychological impact.  There is no merit in this ground.

16.In the fourth ground the decision-makers are accused of failing to give sufficient reasons for rejecting all applicable grounds.  I am satisfied both the Director and the adjudicator gave sufficient reasons.  There is no merit in this ground.

17.I do not find any ground that shows there was an error of law by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

18.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 31^st day of July 2018

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