Romilah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2329/2019

[2025] HKCFI 624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2329 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;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 13 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 1 August 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 April 2019 (the “Notice”), refusing her non-refoulement application.

Background

2.The Applicant is an Indonesian national.  She last entered Hong Kong to work as a domestic helper on 1 September 2018.  She overstayed after her employment was prematurely terminated. She surrendered to the Immigration Department on 19 November 2018 and then lodged a non-refoulement claim by way of written representations dated 31 January 2019, and 1, 4 and 13 February 2019.

3.In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. Her application was rejected by the Director’s Notice.  Her appeal was dismissed by the Board’s Decision.  She now applies for judicial review of that Decision.

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claims, if returned to Indonesia, she will be harmed or killed by her husband because of their domestic dispute and by the leader (ie the “Imam”[5]) of a Muslim organization known as “Syarikat Islam” because she is a lesbian.

5.The Applicant is now aged 40 was born in Central Java, Indonesia.  She had nine years’ formal education and five years’ working experience as a domestic helper in Singapore and Hong Kong.  She is married with a daughter.  Her parents, four siblings, husband and daughter are living in Indonesia.

6.The Applicant married her husband in 2009 under her father’s arrangement to settle her father’s loan borrowed from her husband.  At the time, her husband already had two wives.  After marriage, she lived with her husband and his parents.  Since her marriage, she had been subjected to domestic violence and sexual abuse from her husband two to three times a week.  On one occasion, he scalded her right leg with hot water.  She self-treated the injuries at home, as she had no money to seek medical treatment.  She did not lodge any complaints with the police, as her husband had threatened to kill her if she did.

7.On the advice of her friend, she left her daughter to her friend’s care and went to Jakarta for training as a foreign domestic helper in 2011.  She subsequently obtained employment in Singapore for three years.  When her husband found out she had left him, he went to her friend’s home to look for her and her whereabouts.  He threatened that something bad would happen to the Applicant once he located her.

8.The Applicant returned to Indonesia in mid-2014.  She did not go back to her husband’s home but hid in her friend’s sister’s place in Jakarta for two years until mid-2016 when she took up employment in Hong Kong.  Upon finding out that the Applicant had left Indonesia to work in Hong Kong, her husband was angry.  He called her immediately and threatened to kill her if she did not send him money.  The Applicant was scared and sent money to him for nine months.

9.In around 2017, the Applicant became a lesbian and started a relationship with a same sex partner.  In April 2018, she returned to Indonesia when her employment terminated.  She went back to her husband’s house and told him directly that she wanted to divorce him.  Her husband was enraged.  He shouted and swore at her.  He grabbed her mobile phone and discovered her picture with her partner in sexy clothes hugging each other.  He threatened to report her conduct to the Imam of Syarikat Islam, an organisation which targets lesbians in Indonesia.  The Applicant immediately grabbed back her phone and fled.  She went to stay in an employment agency in Jakarta. During her stayed, she received a call from a person claiming to be the Imam of Syarikat Islam.  That person threatened to punish her and kill her for having changed her sexual orientation and brought disgrace to the whole community. For her safety, the Applicant came to Hong Kong in September 2018 to work as a domestic helper again.

10.She said that although she did not know the Imam of Syarikat Islam and had never met him, she still worried that he and her husband would harm or kill her because of her sexual orientation.

11.The Applicant claimed that state protection was not available because her problem is a personal matter, and making a report to the police on the Imam of Syarikat Islam and her husband would only reveal her sexual orientation.  She does not believe internal relocation viable, as she lacks the financial resources.

The finding of the Board

12.The Applicant testified before the Board.  In short, the Board found the Applicant incredible and rejected most of her evidence.  It found on the basis of authoritative and credible country of origin information (“COI”) that Syarikat Islam does not exist and rejected her claim of fear of harm from the Imam of that organization.  It further found, even accepting that she had a lesbian relationship with her partner, as a matter of law her evidence does not meet the test in the HJ (Iran) v Secretary of State for the Home Department[6] as to entitle her to protection.  It also found even on the basis of her evidence she will not be at risk of harm from her husband.  The Board made the following finding in paragraphs 95 to 105 of the Decision:

“ 95. The Board accepts and finds that the [Applicant] is of Indonesian nationality; and that she is outside her native country.

96. The Board rejects the [Applicant]’s claim that she is unwilling to return to Indonesia because of a well-founded fear of being persecuted for reasons of her sexual orientation for the reasons that follow. Even if it is accepted that the [Applicant] is gay, and had been in a lesbian relationship with another Indonesian domestic helper, the evidence does not meet with the requirements as set out in the HJ Iran test. The Board is satisfied on the available COI (referred to above) that gay people who lived openly would not be liable to persecution in Indonesia. The Board accepts the [Applicant]’s evidence that she would choose to live discreetly, so as to avoid persecution. When asked why she would live discretly, the [Applicant] said she wanted to be faithful to her lover, and as long as her lover continued to love her, she would not seek to find another partner. She told the Board that she had not been involved in another relationship since she began this one in 2017. On the basis of all the evidence, the Board finds that the [Applicant] has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, she has herself chosen to adopt a way of life of abstinence out of her love for [her partner], which means that she is not in fact liable or likely to be persecuted because she is gay.

97. The Board had made it a point of asking the [Applicant] to clarify why she would not live openly as a lesbian in Indonesia From all the evidence given, the Board is satisfied that the [Applicant] would freely and voluntarily choose to live a discreet life, without disclosing that she is a lesbian because she wished to be faithful to [her partner], and not because of fear of the consequence of behaving otherwise.

98. The Board rejects all of the [Applicant’s] claims that she will be at real risk of harm from her husband. She was able to exist for 2 years in Indonesia living with [her friend’s] sister in Jakarta without being bothered by him. The Board finds that the assertion that her husband would be able to locate her in a country as large and as populated as Indonesia to be highly improbable if not fanciful. In any event, the [Applicant] has not found it necessary to see her daughter for years, so there should be no chance of her husband being able to locate her through contact with their daughter.

99. There was nothing to indicate that her husband had any connections with any public official such as a Member of Parliament or police officer, or someone able to wield the power of the state; or that any public official or persons able to wield the authority of the government and/or state would help the husband ill-treat the [Applicant].

100. There was no, or no reliable evidence that her husband the alleged perpetrator had ill-treated the [Applicant] with an intention listed in the definition of torture in section 37U of the Ordinance.

101. The Board did not accept that there is any risk of harm to the [Applicant] from a group that ‘eradicates lesbians’ called the Syarikat Islam. The Board is not satisfied that such an organization exists. The Board is of the view that the core assertions as to the Syarikat Islam have been fabricated or is wholly unreliable.

102. There was no evidence that the government and/or state and/or other authorities in Indonesia had acquiesced in the alleged ill-treatment of the [Applicant]. She had never reported her problems to the police or other authority.

103. Even if the husband had ill-treated the [Applicant] as alleged in Bundle page 89, there was no, or no reliable evidence that the [Applicant] has suffered physical and/or mental suffering of the requisite severity. The credibility and reliability of the [Applicant’s] assertion on the issue domestic abuse has been undermined by the implausibility of her evidence of having hidden away for 2 whole years, being housed, fed and clothed by [her friend’s] sister for no good reasons.

104. There was no evidence to show that the state or government of Indonesia was unwilling or unable to afford protection to the [Applicant].

105.There was no, or no reliable evidence to show that the state or government of Indonesia was unwilling to help the [Applicant] for a Convention reason.”

13.Applying the law applicable to non-refoulement protection to the above finding of fact, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed the Applicant’s appeal.

Legal principles applicable to judicial review

14.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7].

Grounds for judicial review

15.After the above legal principles have been explained to the Applicant, she confirmed she had no complaint about errors of law, procedural unfairness or irrationality in the Decision.  However, in her Form 86, she advanced the following seven grounds:

(1)  the Director’s and the Board’s decisions are unfair and unreasonable;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Board placed too much reliance on COI but failed to take her personal background and experience into account;

(4)  the Director failed to take such argument into account or give it enough weight;

(5)  in view of the above, the Director has failed to attain the high standard of fairness required by the Wednesbury test;

(6)  the Board was procedurally improper and/or unfair when assessing whether to accept her explanations and unreasonably required her to response to  questions that she was not in a position to respond; and

(7)  The Board dismissed her appeal based on findings which it should have allowed the appeal.

Some of these grounds are directed at the Director only.  As the Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, for the Applicant’s benefit, the Court assumed that all grounds are directed at the Board as well.

16.The Applicant was shown her Form 86.  She confirmed that the grounds stated therein were prepared by her lawyer on the basis of the information she provided.  She said she would be able to answer the Court’s questions relating to those grounds.  The Court then went through the grounds with her one by one and asked her for particulars. 

17.Ground (1) is a general accusation lacking in particulars.  The Applicant said she forgot what was the unfairness and unreasonableness she wanted to complain as it was a long time ago.

18.In relation to Ground (2), she was asked to identify the evidence relating to state acquiescence.  She said there was no such thing as state acquiescence in her case.

19.In relation to Ground (3), she was asked to identify the COI which she said the Board had given too much reliance on and the COI supporting her aversion that the police would not be able to give her protection.  She replied there was “nothing”.  Actually, at the hearing before the Board, the Board had asked the Applicant for her comments on all the COI material referred to by the Board (see paragraph 70 of the Decision).

20.In relation to Ground (4), she was asked to identify the argument which she complained the Board had not taken into account or given adequate weight.  She replied that she did not understand what that ground was about.

21.In view of her answers above, there is nothing to support her complaint of the Board’s failure to attain the high standard of fairness under Ground (5).

22.Ground (6) is a general complaint without any supporting particulars.

23.Ground (7) is a general and direct challenge of the Board’s finding of fact which is not permissible, save for errors of law, procedural unfairness and irrationality in the Decision.

24.None of these grounds are substantiated.

Conclusion

25.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 

26.The Board assessed the Applicant’s evidence carefully and gave full reasons for its assessment.  It stringently scrutinized the COI materials for relevance, reliability, balance, accuracy, currency, transparency and retrievability (see paragraph 69 of the Decision).  It was on that basis that the Board found the Applicant incredible and her feared ill-treatment is not well-founded (see paragraphs 12 and 13).  Then, applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are finding of facts which are exclusively within the province of the Board, which the Court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as finding of the law is concerned, the Board is absolutely correct. Insofar as finding of fact is concerned, the Court could detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

27.For the above reasons, the leave application is refused.

Dated the 14^th day of February 2025.

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