Raswi Alias Ruyati v. Torture Claims Appeal Board

HCAL 72/2024

[2024] HKCFI 1717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 72 OF 2024

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 be refused.

Observations for the Applicant:

1.The Applicant is a national of Indonesia in her 40s who last arrived in Hong Kong on 17 March 2019 with permission to continue 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 prematurely terminated after she was convicted of making a false representation to an immigration officer and was sentenced to prison for 5 months on 25 April 2023, the Applicant raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her parents for being a lesbian which they did not approve.

2.The Applicant was born and raised as a Muslim in Indramayu, West Java, Indonesia. After leaving school she worked as a domestic helper in Taiwan, and then starting from 2004 she came to Hong Kong on various different periods under 2 different identities to work as a foreign domestic helper.

3.While in Hong Kong she formed a lesbian relationship with a fellow Indonesia foreign domestic helper for some 5 years until 2009 when her girlfriend returned to Indonesia.

4.In 2014 she met and formed another lesbian relationship with another Indonesian foreign domestic helper by the name of Fati then working in Hong Kong, of which the Applicant disclosed to her parents during her return to Indonesia for holiday later in the same year, but which infuriated her parents who regarded such behaviour as contrary to the teachings of Islam and would bring shame to the family, and insisted that she should marry one of the men from their home village, and when the Applicant refused, her parents then threatened to kill her if she carried on with such lesbian behaviour, whereupon the Applicant left Indonesia and returned to Hong Kong to continue with her relationship with Fati.

5.Thereafter her parents maintained their stance against the Applicant’s lesbian behaviour in their subsequent telephone conversations and kept repeating their threats to kill her when she returned to Indonesia, and so when her last employment was prematurely terminated after she was convicted in April 2023 of making a false representation to an immigration officer and was sentenced to prison, the Applicant then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 June 2023 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 July 2023 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 upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from her parents, that there is no evidence of any real intention of her parents to seriously harm or kill her in particularly after all these years since her revelation to them of her sexual orientation back in 2014 that it is not accepted that her parents would still have such strong feelings or disapproval of her such behaviour, that in any event it was a private family dispute between her and her parents only 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 LGBTI conducts or activities in Indonesia are not against the law and that there are legislative measures and government departments to protect such rights and any such victims from persecutions as well as reasonable internal relocation alternatives being available in Indonesia with a large population of 279 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 large cities such as Jakarta where it would be difficult if not impossible for her parents to locate her.

8.On 7 August 2023 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 13 October 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 November 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of being a lesbian and her alleged sexual relationship with Fati in Hong Kong was disapproved by her parents but found no evidence of any real intention of them to harm or kill her as alleged upon her return to Indonesia, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia, and that according to relevant COI that LGBTI behaviours and activities are not against the law in Indonesia, and with legislative measures as well as supports and assistances from various government departments and NGOs for any victims from such abuses or persecutions due to sexual orientation available to the Applicant that the Board concluded that she will not face any such risk of harm upon refoulement that her claim for non-refoulement protection failed on all applicable grounds.

10.On 5 January 2024 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, of which she confirmed at the hearing as follows:

(1)  That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her non-refoulement claim which was a clear case of unfair attitude shown by the Board which is sufficient to render the decision void;

(3)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required her to respond to questions that she was not in a position to offer any response;

(4)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

11.These are however all just bare and vague assertions of the Applicant containing 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even her own case that it was a private family dispute between her and her parents only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

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 of any reliable evidence of any real intention of her parents to seriously harm or kill her due to her sexual orientation and that any such risk even if real would be negated by the availability of state protection to her for the thorough and detailed analysis and reasoning set out in its decision and with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim and the relevant COI material available before the Board, 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.Furthermore, 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 agreed and 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 all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 2^nd day of July 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