Anik Kuwitasari v. Director of Immigration

HCAL 1803/2023

[2023] HKCFI 3159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1803 OF 2023

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:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 30 August 2023 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.The Applicant is a 37-year-old national of Indonesia who last arrived in Hong Kong on 1 January 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 28 March 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 July 2021, she did not depart and instead overstayed, and was arrested by police on 29 December 2021. 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 creditor over her unpaid debts and/or by her abusive husband for failing to send him money for his use.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 11 May 2022 the 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”).

4.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 creditor or her husband 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 either of them to seriously harm or kill her, that in any event they were private monetary or domestic 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 reasonable internal relocation alternatives are available in Indonesia with a large population of 277 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 part of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her creditor or her husband to locate her.

5.The Applicant’s subsequent late filing of her appeal against the Director’s decision was refused by the Board on 30 August 2022 upon finding that she had failed to exercise all due diligence to file her notice of appeal within the prescribed 14-day period under Section 37ZS (1) of the Immigration Ordinance.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 11 November 2022 upon finding none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in the Board’s decision to refuse the late filing of her appeal, and that there was no prospect of success in her intended application (HCAL 1060/2022 [2022] HKCFI 3443).

Request To Make Subsequent Claim

7.There is no record of any appeal to the Court of Appeal by the Applicant against the Court’s decision, but on 31 July 2023 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that she has been told that her creditor and her abusive husband are still looking for her that she still fears of being harmed or killed by them if refouled to Indonesia, and that since 2019 she has formed a lesbian relationship with a fellow Indonesian woman in Hong Kong that she also fears that she will face death threats and persecution from the predominantly Muslim population in Indonesia as homosexual conduct and activities are forbidden by the teachings of Islam and not acceptable or tolerated by the Muslim community in her home country.

8.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

9.Accordingly, on 9 August 2023 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did via her lawyer from Duty Lawyer Service (“DLS”).

10.By a Notice of Decision dated 30 August 2023 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof as regard threats from her creditor or husband is essentially the same as that of her previous claim, and that she failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success, while her claim of fear of harm from the Muslim community due to her sexual orientation is solely her own speculation that such news of her sexual orientation might be spread by her friend in her home village, while objective COI show that there are some NGOs available in Indonesia to help women in need and to provide various support and assistance to vulnerable groups including LGBT to lower or negate her perceived risk, and that she may also consider relocating to Bali as a “popular gay haven for those in the rest of Indonesia”, and that it is considered that both state protection and internal relocation would be available to the Applicant to lower or negate her perceived fears upon her return to Indonesia that her alleged risk of harm does not amount to a significant change of circumstances since her previous claim was finally determined.

11.On 9 October 2023 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form or in her supporting affirmation filed on the same day in which she just stated that she wants to stay in Hong Kong because her life is in danger in Indonesia without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application.

12.Nevertheless, in view of the fact that the Applicant is without legal representation and is in detention of the Immigration Department, and given the seriousness of the issue at hand and the implication of refusing her request to make a subsequent claim by an immigration officer of the same department that has been detaining her with the aim of removing her from Hong Kong, and that such refusal would thereby deny her the right to have the merits of her subsequent claim determined by the Board under the USM 2-tier screening process for non-refoulement claims, the Court will adopt an enhanced standard in scrutinizing the Director’s reasons for refusing to allow the Applicant to make her subsequent claim of fear of harm due to her being a lesbian if refouled to Indonesia.

13.The immigration officer did not appear to have held any screening interview for the Applicant’s request, which was entirely within his discretion, and that he was also correct in finding that there has been no significant change of circumstances since the Applicant’s previous claim was finally determined as far as risks from her creditor or husband are concerned, but as regard the risk of persecution due to her claim of having become a lesbian and her lesbian relationship with her girlfriend in Hong Kong, it seems that the immigration officer did not take any issue with or dispute her such claim, but just relied on COI that NGOs are available in Indonesia to help women in need and to provide support and assistance to vulnerable groups including LGBT to further lower or negate the Applicant’s perceived risk of harm, and that she can always relocate to Bali as a “gay haven”, as the Director so stated in the decision as follows:

“11. Meanwhile, it is also noted that your assertion in your Statement that you entered into a relationship with Darsini and Ririn knew about your sexual orientation for which you are worried that she might spread the news in your village. You also asserted that being homosexual is not accepted in the Islamic culture and in Indonesia society and you are certain that you would be harmed if people learn about your sexual orientation. After all it is solely your speculation at this stage that Ririn might spread the news about your sexual orientation in your village and as a result you would be harmed by people learn about it. In fact, there are objective country of origin information showing that there are some non-government organization (“NGOs”) available in Indonesia to help women in need. Besides, there are also NGOs provide various support and assistance to the vulnerable groups including LGBT, which could further lower or negated your perceived risk of harm. According to Section 5 of the Country Reports on Human Rights Practices for 2022 in Indonesia, issued by United States Department of State, ‘Domestic and international human rights organizations generally operated without government restriction, except in the Papua region, investigating and publishing findings on human rights cases and advocating improvements to the government’s human rights performance. Government representatives met with local NGOs, responded to their inquiries, and took some actions in response to NGO concerns. The government generally permitted UN officials to monitor the human rights situation in the country, except in the Papua region. Security forces and intelligence agencies, however, tended to regard foreign human rights observers with suspicion, especially those in the Papua region, where their operations were restricted. NGOs continued to press the government to allow representatives of the Office of the UN High Commissioner on Human Rights to visit the region to assess the human rights situation there. Many independent agencies addressed human rights problems, including the Office of the National Ombudsman, the National Commission on Violence against Women, and the National Human Rights Commission. The government is not required to adopt their recommendations and at times avoided doing so. Some agencies, including the human rights and violence against women commission, may refer cases to police or prosecutors.’ According to Section 6 of the same report, it states that ‘In criminal cases with LGBTQI+ victims, police investigated the cases reasonably well.’ There is a global group: Voice – Indonesia, which states that ‘Voice is an innovative grant facility to support rights holders and groups facing marginalisation or discrimination in their efforts to exert influence in accessing productive and social services and political participation.’ ‘Hivos has a strong track record on innovation, technology and creativity (arts and culture) and specific expertise in the field of LGBTI and children. Hivos has a great network of progressive frontrunners, role models and change agents.’ Having considered your worry of being a lesbian, you may, for example, consider relocating to Bali which could further lower or negate your perceived risk of harm. According to the Queer in the World, it states that ‘While the LGBT rights situation across Indonesia is worsening by the day, Bali has (so far) managed to remain a relatively open pink oasis standing tall against the rising tide of hatred. As a result, it has become a popular gay haven for those in the rest of Indonesia … Queer travelers should know that Bali is very safe, and one of the friendliest and welcoming destinations we have ever visited. You do not need to hide your sexuality, but public displays of affection on the streets are generally frowned up – regardless of whether you are straight or gay.’

12. All in all, having considered all the available information from your previous claim and your Request, it is considered that state protection would be available to you if you resort to and internal relocation would also be an option to you to lower or negate your perceived fears. Being an able-bodied person with formal education and some years of working experiences, it is considered not unduly harsh for you to relocate to other areas in Indonesia other than your home area to earn a living and to find a shelter. There is also no new and substantial evidence from your Request to refute these important factors apart from your mere assertion that you do not have the financial means and have no one to rely on in Indonesia, it is therefore considered that your alleged risk of harm does not amount to a significant change of circumstances since your previous claim was finally determined.”

14.While it is open to the Director and his officers in deciding whether to allow a request to make a subsequent claim after the previous claim has been finally determined to adopt measures such as applying robustly those administrative constraints as noted above in [8] under Section 37ZO of the Immigration Ordinance to prevent abuse of the system by a claimant from making repeated claims without merits so as to prolong his stay in Hong Kong, the Court should ensure that the application of such constraints in a particular case would not prevent a genuine non-refoulement claim with realistic prospect of success from being properly considered by the Director and/or the Board: see Ram Chander CACV 12/2018 [2018] HKCA 585 at para 11.

15.In the present case, as noted above, it appears that the Director did not take issue with the Applicant’s claim of being a lesbian or having a lesbian relationship in Hong Kong, in which case the Director should have proceeded to apply the relevant test in his consideration of whether to allow the Applicant to make a subsequent claim as a homosexual person seeking non-refoulement protection from persecution based on membership of that particular social group on such basis in her country of origin, as laid down by the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department, & HT (Cameroon) v Secretary of State for the Home Department, [2010] UKSC 31, on appeal from: [2009] EWCA Civ 172, when Lord Hope elaborated as follows:

“The test

35. This brings me to the test that should be adopted by the fact-finding tribunals in this country. As Lord Walker points out in para 98, this involves what is essentially an individual and fact-specific inquiry. Lord Rodger has described the approach in para 82, but I would like to set out in my own words. It is necessary to proceed in stages.

(a) The first stage, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. But I would regard this part of the test as having been satisfied if the applicant’s case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case.

(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Office’s Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded. He will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is necessarily tolerable has no part in this inquiry.

(c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. As I said earlier (see para 15), the Convention was not directed to reforming the level of rights in the country of origin. So it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do so if he were not returned. It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin.

(d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.

(e) This is the final and conclusive question: does he have a well-founded fear that he will be persecuted? If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5 will have been established. The applicant will be entitled to asylum.

36. It should always be remembered that the purpose of this exercise is to separate out those who are entitled to protection because their fear of persecution is well founded from those who are not. The causative condition is central to the inquiry. This makes it necessary to concentrate on what is actually likely to happen to the applicant. As Lord Walker says in para 88, the inquiry is directed to what will happen in the future if the applicant is returned to his own country. An approach which disregards what is in fact likely to occur there in the case of the particular applicant is wrong and should not be adopted.”

16.In the same judgment, Lord Rodger in paragraph 82 explained the approach in simpler but equally essential terms:

“When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.

If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.

If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.

If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by living ‘discreetly’.

If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.

If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressure, e.g. not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.

If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.”

17.In the exercise of his discretion whether to allow the Applicant’s request to make a subsequent claim for protection on the basis of a well-founded fear of persecution if returned to Indonesia because she is a lesbian, and in deciding whether she has provided sufficient evidence to satisfy the requirements under Section 37ZO (2) of the Ordinance, in my view it is reasonably arguable that the Director and/or the immigration officer had failed to apply the proper test, or to at least ask themselves those relevant questions and to consider what will happen to the Applicant in future if returned to Indonesia by reference to the relevant COI regarding the risk, if any, of persecution to her social group in her country of nationality, and had instead just relied on some COI not entirely relevant to her claimed risk as to the availability of state protection and internal relocation which seems to me wholly inadequate in the inquiry.

18.In the premises and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Director’s decision is reasonably arguable on the grounds that the Director and/or the immigration officer in deciding whether to allow the Applicant to make her subsequent claim had (1) failed to apply the proper or relevant test in the inquiry; (2) failed to consider the relevant COI or insufficiently assessed whether state protection and/or internal relocation would indeed be available as options to the Applicant to lower or negate her claimed risk in her subsequent claim, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

19.Accordingly I grant leave to the Applicant to apply for judicial review of the Director’s decision on the grounds as stated above, and direct that she shall within 14 days of this decision file and issue the originating summons, and to serve a copy thereof together with all the relevant documents on the Director as respondent.

Dated the 7^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