Ipadah v. Torture Claims Appeal Board

HCAL 3843/2019

[2024] HKCFI 1175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 3843 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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 22 October 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 22 October 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 25 October 2015, she did not depart and instead overstayed, and some 9 months later on 25 July 2016 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband over their domestic disputes and/or by her family or the Muslim community in her home country due to her lesbian relationship with a fellow Indonesian woman in Hong Kong.  She was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Muslim in Village Jagapura Lor,

3.During their marriage the Applicant’s relationship with her husband did not fare well due to his drinking and gambling habits that he would become violent and abusive towards her whenever he was drunk or lost money in his gambling by pushing slapping and beating her at will.

4.By October 2011 the Applicant was unable to tolerate her husband’s behaviour and left with the children to move back to her parents’ home in Village Jagapura Lor in West Java, and when her husband came to demand her and the children to return to their matrimonial home, the Applicant refused and instead suggested to divorce him whereupon he became furious and threatened to kill her if she dared to do so before he left. 

5.Thereafter and as he continued to threaten and press her to return to his place and to resume their relationship, and in order to avoid such intimidations and to support her children, the Applicant applied to work as a foreign domestic helper in Hong Kong, which she subsequently did on 31 March 2012 when she came to Hong Kong to start her first employment, during which she met a fellow Indonesian woman and with whom she subsequently formed a lesbian relationship, but later when her husband found out about it in 2013, he told her parents who then became furious and threatened to disown her as her such conduct was contrary to Muslim teaching, and so after her last employment was terminated, the Applicant was afraid to return to Indonesia for fear of being harmed by her husband or her parents or the Muslim community that she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 10 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 22 March 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 husband or her parents or the Muslim community 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 husband or her parents to harm or kill her and that it is just her own speculations that she would face risk of harm from the Muslim community over her claimed lesbian behaviour, that in any event it was a private and personal dispute between her and her husband and/or her parents 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 there are national laws in Indonesia to protect gays and lesbians and that homosexuality is permitted under the existing law that state protection would be readily available to the Applicant from any harm or persecution from the Muslim community if necessary, 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 1.9 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 areas of the country away from her home district in places where non-Muslims are predominant such as in East Nusa Tenggara and North Sulawesi and where it would be difficult if not impossible for anyone to locate her.

8.On 3 April 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 30 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 13 December 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claims of abusive behaviour of her husband towards her and her subsequent friendship with a fellow Indonesian in Hong Kong but found no reliable evidence of her alleged lesbian relationship with her friend or any real intention of her husband or her parents or family members or the Muslim community to harm or kill her even if her assertion of being a lesbian were true, and that in any event any such risk arose from some private or domestic dispute between them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia on the basis of relevant COI as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 24 December 2019 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 her supporting affirmation of the same date. 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 of no reliable evidence of her claimed risks for the thorough and detailed analysis and reasoning set out in paragraphs 73 – 117 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 such finding of the Board.

13.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.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.

15.Moreover, the Applicant recently on 27 March 2024 in writing requested to withdraw her application as she now wants to return to her home country but without providing any further details or explanation as to what has happened to her claimed risks or problems in her home country.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss her leave application.

Dated the 30^th day of April 2024

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