RIZWAN RITAMI DIAN SAFITRI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 247/2023

[2024] HKCFI 2759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 247 of 2023

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 be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Rizwan Ritami Dian Safitri (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 2 February 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 24 November 2021 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is an Indonesian.  She was born on 3 February 1983 in Central Java, Indonesia. 

3.  She received 9 years of education and had 22 years of work experience as a worker in a grocery shop, a salesperson, a farmer and a foreign domestic helper.

4.  The Applicant worked as a domestic helper in Saudi Arabia and Singapore during the periods of 2000 to 2002 and 2002 to 2003, respectively.  From 2003 to 2006, she worked as a salesperson for medical products in Surabaya, Indonesia.  In around 2008 to 2012, she returned to her village and assisted her mother in farming.  She came to Hong Kong to work as a foreign domestic helper in February 2012.

The Claim

5.  The Applicant claimed that she would be harmed or ill-treated in Indonesia by (1) the Muslim community for being a lesbian and (2) her stepfather (“Rizwan”) due to Rizwan’s unpaid loan.

6.  For the purported risks from the Muslim community in Indonesia, the Applicant relied on two separate incidents (together “Incidents”).  The 1^st incident occurred in around 2004-2005 when she left Surabaya and visited her home with her then girlfriend (“Yuliz”).  The local villagers saw their romantic behaviours and took the Applicant and Yuliz to a meeting with the village head.  There were around 20 village people in that meeting and some of them insulted and humiliated the Applicant and Yuliz.  They had their hands tied behind their back and were taken to a parade around the village.  During the parade, other village people humiliated them by pinching them and pouring sewage water on them.  They sustained bruises all over their bodies. (“1^st Incident”)

7.  The Applicant and Yuliz were then detained for around 6 to 7 days.  They were given one meal per day only.  The villagers asked the Applicant if she intended to be a lesbian in the future, to which she answered affirmatively.  The villagers then threatened to kill the Applicant because of her sexual orientation.  The Applicant fled the village after her release and went back to Surabaya.

8.  Another incident occurred in around July to August 2019 when the Applicant returned from Hong Kong to Indonesia and lived with her girlfriend (“Iva”) in Iva’s village in Malang, East Java.  After staying in Iva’s village for two days, the Applicant and Iva were summoned by the village chief privately.  The village chief told the Applicant and Iva that homosexual relationships were prohibited in the village.  They therefore left the village the next day.  (“2^nd Incident”) Neither the Applicant nor Iva was harmed in the 2^nd Incident.

9.  As for the alleged risk from Rizwan, the Applicant claimed that she returned to her home in around May 2017.  Rizwan told her to help with his outstanding indebtedness of around IDR 500 million (“Debt”).  When she told Rizwan that she had no money, Rizwan dragged her into her bedroom and locked her up for 3 days.  Neither Rizwan nor her mother talked to her during those 3 days and her mother only provided basic meals to her.

10.  Three days later, Rizwan again asked the Applicant for money.  The Applicant claimed that she did not have money and Rizwan demanded her to marry the son of his creditor (“Creditor”) to settle the Debt.  The Applicant refused and gave Rizwan IDR 20 million.  The Applicant was released only after she promised to help Rizwan with her earnings in Hong Kong.

11.  The Creditor went to the Applicant’s home three times in May 2017.  The Creditor demanded her to marry his son if she did not repay the Debt in 5 years. 

12.  The Applicant stopped helping with Rizwan’s debt problem in around August 2019.  Since then, Rizwan started hitting the Applicant’s mother.  Rizwan called the Applicant in around July 2020, threatening to marry her to the Creditor’s son if she did not remit money to Rizwan.  The Applicant’s mother sold the rice field she inherited from the Applicant’s grandparents but that was not enough to fully pay back the Creditor.

Procedural history

13.  The Applicant last arrived in Hong Kong on 14 August 2019 to work as a foreign domestic helper.  She was allowed to stay until 28 July 2021 or 14 days after termination of her employment.  Her employment was pre-maturely terminated on 14 July 2020.  She did not leave Hong Kong within 14 days and overstayed in Hong Kong.  She was arrested by the police on 30 December 2020.  By a written representation of 2 January 2021, the Applicant lodged the Claim.

14.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)   risk of torture under Part VIIC of the Immigration Ordinance, Cap 115;

(b)   risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”);

(c)   risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)   risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

15.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

16.  On 20 February 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

17.  On 9 August 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that she wished to “close” this case (“Withdrawal Application”).

The DOI Decision

18.  After the 1^st Incident, the Applicant chose to return to her home village to assist her mother in farming from 2008 to 2012 when nothing eventful happened.  She also returned to her home village for holiday in May 2017 without encountering any harm, ill-treatment or harassment from the villagers.  She also went to Iva’s home village for holiday in 2019 knowing that Iva also came from a Muslim family. They were not harmed nor ill-treated at Iva’s village but were only told by the village chief in private that they did not accept homosexual relationship.  The Director was of the view that the Applicant’s perceived harm or ill-treatment from the people from her home village and/or other conservative Muslim community was not as imminent and substantial as she asserted or the alleged threats or hatred from the village people of her home village had been subsided.

19.  The Director noted that the ill-treatments originating from the Applicant’s sexual orientation occurred in two villages only and there was no evidence to suggest that the Applicant would be discriminated in other parts of Indonesia.  There was also no evidence to suggest that the ruling party or any political party in Indonesia had reasons to harm the Applicant.  The Director found that internal relocation would be viable for her to avoid the perceived risks from the villagers who had ill-treated her in the past (§14 of the DOI Decision).

20.  As for the alleged risk from Rizwan, the Director noted that the low intensity and low frequency of past ill-treatment from Rizwan was indicative of a small future risk of harm upon the Applicant’s return.  The Director did not accept that the asserted ill-treatment inflicted upon the Applicant by Rizwan had attained a minimum level of severity such that non-refoulement protection was warranted. 

21.  There was also no evidence to suggest that Rizwan possessed the necessary means to locate the Applicant in every part of Indonesia.

22.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that there might be some incompetence in the Indonesian government and police but there were objective indications in the COI that the Indonesian government took steps to improve the situation.  The Director found that the Indonesian government was able and willing to protect the rights of its citizens.  The Director further found that the Applicant could seek assistance from a number of organizations whose missions were to support the LGBT community (§21(vi) of the DOI Decision).  The Director assessed that reasonable state protection was readily available to the Applicant.

23.  The Director further found that internal relocation would be viable and the Applicant could move to Bali or Surabaya to avoid the perceived risks of harm.  After considering her education and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

24.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

25.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at the hearing before the Board, the Board formed the view that the Applicant greatly exaggerated the alleged dangers from Rizwan and the villagers in her home village.  The Board set out its analysis of her evidence in §40 of the Board’s Decision.

26.  At §41 of the Board’s Decision, the Board remarked that:

“ The [Applicant’s] evidence and admissions at the oral hearing indicate that she has exaggerated the risks and danger from her stepfather [i.e. Rizwan]. She had in fact left his sphere of influence and has been leading an independent life for many years. She also admits her stepfather's debts had been reduced and/or settled after her mother sold the rice field. She left her village and took up overseas employment in 2000 to 2003 in Saudi Arabia and Singapore, in Surabaya in 2003 to 2006 and in Taiwan in 2006 to 2008. She returned to help her mother in farming from 2008 to 2012 without any trouble from the local villagers. She should also be able to relocate to other parts of Indonesia on her return; it is unlikely she would come to any harm in Indonesia. Her evidence on the risk of danger from her stepfather and the villagers on her return is exaggerated and unreliable and her claim fanciful and implausible.”

27.  The Board was of the view that she was publicly humiliated in the 1^st Incident but the ill-treatment she received was not sufficiently serious to be considered as “torture”.  The Board noted that the Applicant returned to live in her home village from 2008 to 2012 and did not encounter any ill-treatments.  The Board further observed that the Applicant was not punished or ill-treated in the 2^nd Incident.  There was insufficient evidence to show that she faced any risk of harm serious enough to constitute a proscribed risk of harm (§53 of the Board’s Decision). 

28.  The Board further found that state protection was available and the Applicant could seek help from non-government organizations such as the Women Headed Household Empowerment Program or the Integrated Services Center for Women and Children (§59 of the Board’s Decision).

29.  The Board held that internal relocation to one of the larger cities in Indonesia would be viable and the Applicant might have a better prospect in securing a job in a city than in her home village.

30.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

31.  In a judicial review, the court does not step into the shoes of the decision makers.

32.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

33.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

34.  In the Supporting Affirmation, the Applicant put forward the following grounds for her intended judicial review:

(1)   The Adjudicator did not consider her claim and directly dismissed her claim.

(2)   She had submitted documents in her mother language to the Adjudicator but the Adjudicator did not accept them because he could not understand.

(3)   She requested time to arrange for translation of her documents but “my officer had no time”.

(4)   The translator/interpreter was not helpful and asked her not to take long time for interview.

35.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents.

36.  The Board had considered the Claim and set out detailed reasons for its findings and rulings in the Board’s Decision which went into 63 paragraphs and 25 pages.  I do not see how the Applicant may substantiate her assertion in the Supporting Affirmation that: “Adjudicator did not consider my claim.  Adjudicator directly dismissed.  He did not even take time or did not think about my life.”

37.  The Applicant had submitted further documents to the Director.  These documents were duly considered by the Director in §§42-43 of the DOI Decision.  No doubt, these documents should have been included in the hearing bundle placed before the Board and considered by the Board.

38.  In §39(iv) of the Board’s Decision, the Board noted that the Applicant had exhibited her family card to her notice of appeal.  If the Applicant had further documents to produce, she could exhibit the same to her notice of appeal.

39.  In §39 of the Board’s Decision, the Board recorded that the Applicant had confirmed and adopted as her evidence the content of her written representation, her answers given in her claim form, the records of her screening interview and her grounds of appeal.  The Board also recorded that the Applicant had provided further information at the hearing before the Board.  Other than documents exhibited to her notice of appeal, there was no mention in the Board’s Decision of the Applicant seeking to submit further documents at the hearing before the Board. 

40.  In the Supporting Affirmation, the Applicant alleged that she had further documents to submit which were not accepted by the Board.  This is not supported by the records contained in the DOI Decision and the Board’s Decision.  Furthermore, the Applicant had not specified in the Supporting Affirmation what further documents submitted had been rejected by the Board nor exhibited such documents to the Supporting Affirmation.  The Applicant’s such assertions were only vague and bare assertions.  I find no merits in her such complaint.

41.  The Applicant complained that the interpreter did not assist her.  I note that the Applicant had prepared the Supporting Affirmation and the Withdrawal Application, all of which were in English, without requiring interpretation.  The Supporting Affirmation had set out detailed grounds of application as referred to in §34 above.

42.  It seems that the Applicant can manage to express herself in reasonable English, albeit may not be in the most fluent way.  If the interpreter had failed to assist her at the screening interview before the immigration officer or at the hearing before the Board, she could raise that with the interviewing officer or the Board.  There was no record of such complaints.   

43.  I see no merits in the Applicant’s complaint on the language issue.

44.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.  The Applicant also provided no particulars or specifics nor supporting documents on matters stated in the Form 86 and referred to in §34 above.  They were only vague and bare assertions.

45.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am 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 very high standards of fairness. 

46.  The Board found that the Applicant’s evidence on the risk of danger from Rizwan and the villagers on her return to Indonesia was exaggerated and unreliable and her claim fanciful and implausible.  She should be able to relocate to other parts of Indonesia to lower or negate any perceived risk of harm in Indonesia.

47.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.  

The Withdrawal Application

48.  The Applicant subsequently filed the Withdrawal Application on 9 August 2024 stating that she wanted to go back to Indonesia.  She wanted to close and withdraw her case.

49.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

50.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“ The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

51.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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