NURUL-AZIZAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 932/2024

[2024] HKCFI 2397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 932 OF 2024

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 12 April 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing.  She appeared before the Court on 21 August 2024.

The applicant

3.  The applicant, aged 45, is an Indonesian.  She last arrived in Hong Kong on 30 March 2019 to work as a foreign domestic helper (“FDH”).  Her employment contract was prematurely terminated on 5 February 2023 and she overstayed since 20 February 2023.  The applicant was arrested on 24 July 2023 and was sentenced to imprisonment of 15 months on 27 July 2023 for overstaying.  The applicant made a non-refoulement claim on 4 September 2023.  The claim was made on the basis that, if refouled, she would be rejected by her parents and be discriminated by the Indonesian community because of her sexual orientation.

4.  According to the applicant, she found females more appealing to her than males since 15.  In 1997, the applicant developed a feeling towards a close female friend, who upon knowing that the applicant was a lesbian, moved out of town.  Later in the same year, the applicant fell in love with a woman who was seven years older than she was. They met once a week and would even have sex sometimes.

5.  In 2000, the applicant’s parents threatened to disown her after discovering her sexual orientation.  For the next five years, the applicant moved away from her hometown.  She was depressed due to family rejection and felt that she had to accept the dominant culture in Indonesia where lesbians were not accepted.  In 2006, the applicant returned home to help her family run the grocery because her father was ill.  In 2008, the applicant left home again after her parents intended to arrange her marriage.  She registered with an employment agency to search for job opportunities overseas.  After seven months, she left for Taiwan to work as a FDH.  

6.  The applicant returned to Indonesia in 2013, after which she remained at home with her parents.  In 2017, rumours about her sexuality circulated in the village.  Her neighbours showed disapproval whenever they saw her, while some of them just ignored her.  Meanwhile, the applicant also had daily verbal fights with her parents due to her sexual orientation.

7.  Feeling distressed, the applicant decided to leave Indonesia again.  She came to Hong Kong in August 2017 and had not returned to Indonesia since then.  She also did not maintain contact with her family.

8.  The applicant was of the view that she could not seek protection from the police because she could not afford bribing them.  The applicant also considered internal relocation not viable because lesbianism was not the dominant culture in Indonesia, so that she would have to conceal her sexual orientation to avoid discrimination.  Furthermore, she also lacked the financial means for relocation.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 14 November 2023 (“the Director’s Decision”).

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the lack of past ill-treatment from her parents indicated the unlikelihood of a serious harm upon her return to Indonesia.  In fact, according to the applicant, her parents had already passed away, so that her perceived source of fear no longer existed [12]-[13].  Meanwhile, there was insufficient information suggesting that the applicant was discriminated by the community due to her sexual orientation.  In any event, discrimination is not a basis for seeking non-refoulement protection [14]-[15].

12.  Furthermore, (i) state protection would be available [16]-[23]; (ii) internal relocation would be viable [24]-[26] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[37] or Torture risk [38]-[42].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board.  On 20 March 2024, the Board conducted an oral hearing.

14.  The Board noted that the applicant gave generally consistent evidence and was convinced on the balance of probabilities that her account of events was credible [39].  However, given that her parents were deceased, the Board considered that the feared ill-treatment from her parents no longer existed.  In the meantime, the applicant also had not been harmed by anyone in Indonesia due to her sexual orientation, so that there was no real and substantial risk that she would suffer harm by her neighbours upon return [40]-[41].

15.  In any event, state protection and internal relocation would be available to the applicant according to the country of origin information [42]-[46].  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk, Persecution risk or Torture risk [8]-[21], [47]-[50].

16.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 dated 12 June 2024 for leave to apply for judicial review of the Board’s Decision.

18.  In the affirmation in support of her application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant asked the Court to review her case so that she may have freedom.

21.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

22.  The Board had considered the COI and it came to its conclusion that the applicant will not be ill-treated by her neighbours if she returns to Indonesia.  The Board further found that state protection and internal relocation are options available to the applicant if she returns to Indonesia.  The applicant fails to adduce any evidence to refute the Boarding’s finding of the facts.

23.  The applicant has raised no valid ground to challenge the Board’s Decision.

24.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.