SUNARSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1071/2022

[2023] HKCFI 428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1071 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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Indonesia who last arrived in Hong Kong on 27 November 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 27 November 2010 or within 14 days of its early termination, but when it was prematurely terminated on 23 June 2009, she did not depart and instead overstayed, and was arrested by police more than one year later on 6 December 2010 for possession of another person’s identity card for which she was subsequently convicted and sentenced to prison for 8 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a torture claim but did not proceed with it after she failed to report on her recognizance on 6 November 2012 and had disappeared thereafter, her torture claim was on 21 March 2013 treated as withdrawn.

Previous Non-refoulement Claim

2.  One year later on 27 March 2014 the Applicant was again arrested by police, and after she was referred to the Immigration Department for investigation, she then raised a non-refoulement claim under the Unified Screening Mechanism (“USM”) on the basis that if she returned to Indonesia she would be harmed or killed by:

(a)  her husband Purwanto for failing to send him money for repayment of his loan borrowed from a local money-lender and for having an extra-marital affair with a Somali man named Fuad in Hong Kong;

(b)  her in-laws for the same reasons;

(c)  her son for bringing shame to him and the family due to her said affair; and

(d)  her husband’s creditor for failing to repay his loan.

3.  The Applicant’s non-refoulement claim was accepted for assessment and determination under all the applicable grounds, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 October 2015 and attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 17 February 2016 and a Notice of Further Decision dated 8 August 2017 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”).

5.  In his decisions 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 perceived enemies 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 any of them to seriously harm or kill her, that even on her own case that her husband’s creditor had never met her and that she had since 2009 lost any contact with her husband or in-laws that it was not accepted that they would still have any adverse interest in her after all these years, that in any event her problems with her perceived enemies were all private domestic or monetary disputes 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 255 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 any of her perceived enemies to locate her.

6.  The Applicant’s appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board (“Board”) on 22 February 2018 upon hearing her in evidence and finding that she had had no further contact with any of her perceived enemies since 2009 that there was no evidence or reason to expect that there would still be any adverse interest from any of her perceived enemies in her after all these years that there is no merit in her claim of any such fear from any of her perceived enemies or in her non-refoulement claim or appeal, and that in any event such risks from her enemies were all confined to her local area and that it would not be unduly harsh or unsafe for her to relocate to elsewhere in Indonesia that her claim failed on all applicable grounds, and that it also confirmed the Director’s decisions.

7.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 19 October 2018 upon finding none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 306/2018 [2018] HKCFI 2299).

8.  The Applicant’s subsequent appeal against the Court’s decision was then dismissed by the Court of Appeal on 2 April 2019 upon finding that she failed to identify any error of law by the Court or any relevant matter that had been failed to consider or any reason why the decision was plainly wrong (CACV 533/2018 [2019] HKCA 376).

9.  The Applicant’s notice of motion for leave to appeal to the Court of Final Appeal was also refused by the Court of Appeal on 4 June 2019 (CACV 533/2018 [2019] HKCA 574).

Subsequent Claim

10.  One year later on 10 June 2020 the Applicant in writing to the Director requested to make a subsequent claim on the basis that she has married her Somali boyfriend in Hong Kong that she fears of being harmed or killed by her Indonesian husband and/or by the Indonesian authorities as her such marriage is bigamous and against the blasphemy law of Indonesia for which she fears of being prosecuted and punished severely if refouled to her home country.

11.  On 24 July 2020 the Director allowed the Applicant to make a subsequent claim in accordance with Section 37ZP of the Immigration Ordinance to be assessed on all the applicable grounds under USM, and for which she attended another screening interview before an immigration officer on 26 November 2020.

12.  For her subsequent claim the Applicant’s case is that she married her Somali boyfriend by religious ritual held in a Tsim Sha Tsui mosque sometime in 2014 or 2015 while still being married to her Indonesian husband, but which she forgot to disclose in her previous claim, and while the Somali man has since left Hong Kong by himself, her said marriage was subsequently revealed by one of her friends to her Indonesian husband in 2017 who then threatened to kill the Applicant if and when she returned to Indonesia, and that she also fears that he may have reported her bigamous marriage to the Indonesian authorities as it would be considered as against the blasphemy law of her home country for which she fears of being prosecuted and subjected to severe punishment if refouled to Indonesia.

13.  By a Notice of Decision dated 1 March 2021 the Director rejected the Applicant’s subsequent claim on all the applicable grounds after taking into account of all the relevant circumstances of her claim including findings of credibility and facts made by an immigration officer and the Board in relation to her previous claim and upon assessing the level of risk of her being harmed or killed upon her return to Indonesia as low due to serious doubt over the credibility of her claim of having gone through a religious marriage with the Somali man of which she claimed to be either in 2014 or 2015, either which if true that she could not have forgotten to disclose in her previous claim due to its important implications to her claim, that she had had ample opportunities to do so in her NCF and her screening interview with legal representation before the immigration officer on 13 January 2016 or in her later BOR 2 Claim or her subsequent appeal/petition to the Board including her oral hearing on 18 September 2017 before the Adjudicator when she never mentioned anything about any marriage religious or otherwise with the Somali man whose relationship with her was always described only as extra-marital or adulterous in her previous claim, and that even if such a marriage did take place that according to relevant COI that it is not accepted that she would face any prosecution for breaching any blasphemy law in Indonesia or that her such fear is well-founded, nor is there any evidence of any such action against her by the Indonesian authorities, while any risk of harm from her Indonesian husband will be negated by the availability of state protection as similarly found by both the Director and the Board in her previous claim as well as reasonable internal relocation within Indonesia with a large population of more than 275 million people spread across a vast territory of some 1.8 million square kilometers that it is not unduly harsh or unreasonable for her as an able-bodied adult with working experience to move to other part of the country away from her home district to large cities such as Jakarta where it is difficult if not impossible for her husband to locate her.

14.  On 11 March 2021 the Applicant lodged an appeal to the Board against the Director’s decision, and for which she attended an oral hearing before the Board on 18 January 2022 during which she again gave oral evidence and answered questions raised of her subsequent claim by an Adjudicator different from that in her previous claim, and on 3 August 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

15.  In its decision the Board found numerous inconsistencies contradictions and implausibility in the Applicant’s evidence that it seriously doubted the credibility of her claim of having married her Somali boyfriend in the absence of any details or documentary evidence from her and upon finding it incredible that she could have forgotten to disclose it to the Director or the Board in her previous claim or that her Indonesian husband could have found out about it from one of her friends despite no contact with him since 2009, that in any event on the basis of the relevant COI including the Criminal Penal Code of her home country that there is no evidence to suggest that she would or could face any prosecution for any acts against the bigamy or blasphemy laws upon her return to Indonesia, and that any risk of harm from her Indonesian husband for whatever reasons would be negated by state protection and internal relocation within the country away from her home district without any risk of being located as found by both the Director and the Board in her previous claim that her subsequent claim similarly failed on all applicable grounds.

16.  On 11 October 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her affirmation filed on the same day she put forward various grounds for her intended challenge which can be summarized as follows:

(1)  That the Board failed to take her unique situation into consideration fairly and sequentially;

(2)  That the Board failed to adopt a reasonable approach in assessing her credibility or to afford her with the benefit of the doubt;

(3)  That it was procedurally unfair that she was not given legal or language assistance with her appeal or to translate the Board’s decision to her;

(4)  That the Adjudicator was illogical unfair and unreasonable to completely reject her subsequent claim and found that she failed to establish her alleged risk arising from her relationship with the Somali man notwithstanding the fact that she was not able to disclose it in her previous claim due to the fact that she was confused and scared; and

(5)  That it was procedurally unfair for the Board to try to dispose of her subsequent claim as quickly as possible due to public policies.

17.  These are however all just broad and vague assertions of the Applicant without any necessary or relevant 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 how did the Board fail to take her situation into consideration or adopt a reasonable approach in assessing her credibility. None of these bare assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

18.  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.

19.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility as to her alleged marriage with the Somali man for the thorough and detailed analysis and reasoning set out in paragraphs 11 – 38 of its decision and with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, that even on the facts of her own case at the highest that the Board was entitled to find her such claim based solely on her bare assertions without any reliable evidence or proof of something as formal and important as a marriage despite having had ample time and opportunities to obtain the necessary documentary proof during all these years since it was said to have taken place in 2014 or 2015, and that the Board was also correct to find it wholly incredible and unacceptable as to her explanation of being confused or scared for not having disclosed such marriage which if true was clearly pivotal to her non-refoulement claim for protection either to the Director or the Board in her previous claim, while notwithstanding such adverse findings that the Board did also proceed to consider the relevant COI as to any possible legal implications of any risk arising from such marriage as to any criminal charges against her for bigamy or blasphemy in Indonesia and rightly concluded of no evidence to support such claimed fear of the Applicant. As such 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 findings of the Board.

20.  Furthermore, as it was established without challenge by both the Director and the Board in her previous claim and also similarly in her subsequent claim that the risk of harm from the Applicant’s Indonesian husband even if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia without any risk of being located, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

21.  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 subsequent claim.

22.  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 I refuse her leave application.

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