Indriana v. Torture Claims Appeal Board

HCAL 925/2022

[2023] HKCFI 3108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 925 OF 2022

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 refused.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Indonesia who arrived in Hong Kong on 13 September 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract on 13 September 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 8 December 2019, and after her visa had expired on 24 February 2020, she did not depart and instead overstayed in Hong Kong, and was arrested by police more than 9 months later on 3 December 2020. 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 family or relatives or her Muslim friends for being a lesbian which is contrary to the teachings of Islam and not acceptable to the predominantly Muslim population in her home country. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Muslim in Jember, Indonesia. After leaving school she worked as a domestic helper in Bali where she met and married her husband in 2007 and later gave birth to their son.

3.In 2017 she divorced her husband due to his extra marital affairs with other women, and moved with her son back to reside with her mother, and in September 2018 she came to Hong Kong to work as a foreign domestic helper.

4.However, her employment was prematurely terminated on 8 December 2019, and after her visa also expired on 24 February 2020, she did not depart and instead overstayed in Hong Kong.

5.More than 9 months later on 3 December 2020 she was arrested by the police, and was referred to the Immigration Department on 7 December 2020 for investigation when she raised her non-refoulement claim for protection, for which she completed a Non- refoulement Claim Form (“NCF”) on 16 July 2021 in which she claimed to have become a lesbian after having met her girlfriend in December 2020 and formed a lesbian relationship with her, and for which she feared of being harmed or killed by her mother and relatives and/or by her Muslim friends as homosexual conduct is contrary to the teachings of Islam and not acceptable by the Muslim community in Indonesia, and that she also attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 23 August 2021 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 mother or relatives or Muslim friends due to her claimed lesbian conduct upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that notwithstanding her claim of threats from her mother and uncle on the phone in 2018 after noticing her dressed like a man on the photographs posted in her Facebook account that they had continued to support her financially in Hong Kong after she lost her job in December 2019 that it is not accepted that they have any real intention of harming or killing her as claimed, that in any event in the absence of 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 267 million people spread across a vast territory of more than 1.8 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.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 21 June 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 July 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence of having become a lesbian only after meeting her girlfriend Yumita on Yumita’s day off on Sunday 13 December 2020 in Mongkok and with whom she then formed a lesbian relationship, which was clearly contrary to her claim of having been reprimanded and threatened by her mother and uncle in early 2018 for being a lesbian that they would drive her out of their home if she returned to Indonesia, of which the Applicant then explained that her mother had noticed from photographs posted by her in her Facebook account of her dressing like a man that her mother thought that she had become a lesbian that caused her to make those threats against her back in 2018 before she had actually become a lesbian later in December 2020, but which she further changed her evidence that she in fact already had other girlfriends before meeting Yumita in December 2020 when she had then completely transformed into a lesbian by changing into man clothing and cutting her hair short, of which the Board found to be just her bare assertions with numerous contradictions and discrepancies which she was unable to properly or convincingly explain or clarify that it seriously doubted the credibility of her claim, which was further undermined by her failure to raise her claim upon first overstaying in Hong Kong in February 2020 until her arrest by police more than 9 months later that her bare assertion of having become a lesbian shortly after her arrest is simply a fabrication to create a basis for her non-refoulement claim which the Board wholly rejected as incredible and concluded that her claim failed on all applicable grounds.

10.On 14 September 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she stated that the decision has many errors but failed to identify what they are or put forward any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. As such and in the absence of any error of law or irrationality 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 for her intended challenge.

11.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.

12.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 56 – 73 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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.

13.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.

14.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 refuse to grant leave and dismiss her application.

Dated the 5^th day of December 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