Susanti Rasmin v. Torture Claims Appeal Board

HCAL 180/2019

[2023] HKCFI 1631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 180 OF 2019

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Indonesia who arrived in Hong Kong on 16 January 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was terminated on 17 February 2017, she did not depart and instead overstayed, and was arrested by police on 27 March 2017. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her parents for failing to assist her father repaying his debts and/or by them and the villagers in her home village for being a lesbian as a Muslim. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Muslim in Jepara, Central Java, Indonesia. Her mother passed away while she was a small child, and that she was often abused and ill-treated by her step-mother whom her father later married.

3.After leaving school the Applicant worked as a domestic helper in Jakarta before undertaking the same employment in Singapore where she met and formed a relationship with her boyfriend, but later upon discovering that he was already married, she therefore broke off their relationship.

4.In 2014 she returned to her parents’ home in Indonesia, and one day in August 2014 she was asked by her father to marry his creditor as settlement of his outstanding debts, and when she refused, she was threatened and beaten by her father and step-mother, and to avoid such abuses, she therefore applied to work in Hong Kong as a foreign domestic helper, and on 16 January 2015 she departed Indonesia to start her employment in Hong Kong.

5.While working in Hong Kong, the Applicant formed a lesbian relationship with a fellow Indonesian domestic helper, but when it was later discovered by her parents through photos posted by her onto the social media, they called her on the phone demanding her to end such relationship as it brought shame to their Muslim family, while many of her fellow Muslim villagers in her home district also made threats against her upon learning of her such conduct, and so when her last employment was terminated in February 2017, she was afraid to return to Indonesia, and therefore overstayed in Hong Kong, and after her arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 2 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 25 January 2018 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 her 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”).

7.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 her parents or her fellow villagers upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her parents to seriously harm or kill her or of any threats from her fellow villagers, that in any event they were private personal disputes between them 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 homosexual behavior or activities are not illegal under the Penal Code of Indonesia and that government has provided protection and support to gay and lesbians in the community, while reasonable internal relocation alternatives are also available in Indonesia with a large population of 260 million people spread across a vast territory of more than 1 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 her home district in large cities such as Jakarta where it would be difficult if not impossible for anyone to locate her.

8.On 7 February 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she failed to attend the scheduled oral hearing on 1 August 2018 without any explanation, and that the Board proceeded to deal with her appeal in her absence and on papers. On 20 December 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence provided earlier to the Director that it had intended to raise various issues with her at her appeal hearing in particularly her claimed lesbian relationship but which she failed to attend without any explanation, and that on the basis of the evidence and information available before the Board but without her oral or documentary evidence or explanations/clarifications that it doubted her claims of threats from her parents over her father’s debts or that she was a lesbian or had a lesbian relationship with a fellow Indonesian or that she had any fear of such risks that caused her to overstay in Hong Kong, and concluded that the Applicant had failed to establish that she will face any real risk from her parents or fellow villagers or anyone upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.

10.On 18 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for her intended challenge which can be summarized as follows:

(1)  That the Adjudicator failed to meet the high standard of procedural fairness required of the Board in that no oral hearing was provided for the Applicant’s appeal to satisfy its obligation of procedural fairness, and that the Adjudicator also took account of irrelevant considerations in assessing the Applicant’s claim rendering a refusal decision;

(2)  That the Adjudicator after reviewing the case gave no proper reasons for the decision but it would appear that given the history of the matter and the material he had before him that he was satisfied that he had all the information he needed to conduct a review of the petition without a fair oral hearing and unrepresented;

(3)  That the Adjudicator after describing the Applicant’s account of her experience and concerns failed to properly conduct any analysis thereof in the assessment of her torture risk before finding that there were no substantial grounds that she would be subjected to torture if she returned to her home country;

(4)  That the Adjudicator failed to take account of all the COI available before the Board before finding that there was no genuine threat to the Applicant or that internal relocation was a viable option to her;

(5)  That the Adjudicator had significantly relied on source of news not officially recognized or were simply hearsay or outdated that such lack of credible source of information had led to groundless speculations that there was no risk to the Applicant to return to her home country;

(6)  That the Adjudicator had done a shoddy job, inconsiderate and had failed miserably.

11.These grounds are however all just some vague and bare assertions of the Applicant with a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to conduct proper assessment of her claim or that he failed to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or which source of news or COI relied on by the Board were not officially recognized or were hearsay or outdated, while the Board did schedule an oral hearing for her appeal but it was the Applicant who failed to attend such hearing without any excuse or explanation. As such, and as none of her assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, and as she also failed to attend the hearing of her application before this Court so as to explain clarify and elaborate such bare assertions, I do not find any of them reasonably arguable for her intended challenge or any merits in her intended application.

12.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.

13.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 19 – 31 in its decision in the absence of any evidence or explanation or clarifications of her claim or the various issues which the Board had intended to raise of her claim when she failed to attend the oral hearing of her appeal without any explanation, and in the absence of any error of law or procedural unfairness in her 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 the finding of the Board.

14.The fact is that it has also been 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 her to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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 part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse her leave application.

Dated the 23^rd day of June 2023

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