KHORIAH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL2478/2018

[2019] HKCFI 1566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2478 of 2018

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 (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a national of Indonesia. She arrived in Hong Kong on 20 October 2013 as a domestic helper and was permitted to stay until 27 May 2015. Her employment terminated prematurely on 27 April 2014. She overstayed. She surrendered to the Immigration Department on 12 February 2015. She lodged her non-refoulement claim on 11 May 2015.

3.  In her statements given to the Director and the Board, she claimed that if refouled, she would be endangered by her family and the people living in her home place because her relationship with another Indonesian girl had brought disgrace and disrepute to the family and she would be rejected as a homosexual.

4.  She changed her sex orientation and became a lesbian since 2009. She had a female partner called Istil in Indonesia. Her mother had gained the title of Hajj for being a devoted Muslim, a well-respected and influential individual in the Muslim community in her village. She kept her relationship with Istil in secret. In 2010, she returned to Hong Kong for work and broke up with Istil. In Hong Kong, she came across another girl, with whom she formed partnership. This girl was called Siti Kholifah (“Kholifah”). Their intimacy in Victoria Park in Hong Kong was seen by one of her neighbours, who told her mother in Indonesia. Her mother was furious about this. She called the applicant and warned her to cease being a lesbian or the family and the community would harm her if she returned to Indonesia. However, she was never ill‑treated by her family. She had returned to Indonesia twice since 2009, but she stayed with Kholifah. Other people did not know her relationship with Kholifah. She feared that she would be harmed by her mother and the other people within the community if she returned to Indonesia. She would not be able to relocate herself as she did not have money. She would not obtain state protection despite the fact that President Jokowi had stated in a public interview that police must act against any groups that seek to inflict violence on the lesbians and that there should be no discrimination against anyone.

The Director’s Decision

5.  The Director considered her application in relation to the following risks:

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

b.  Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

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

d.  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”).

6.  By Notice of Decision dated 13 April 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board

7.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 3 September 2018.

8.  By Decision dated 29 October 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s case and found that accepting the applicant’s facts as she stated and that homosexuality being generally considered a taboo by both Indonesian society and the government, it found that homosexuality is not an offence punishable by national law [32]. It also found that the evidence only showed that her mother had uttered threats twice in 2012 and there was no evidence to show that her mother would harm her [33]. It therefore found that she was not subjected to torture within the meaning of section 37U of the Ordinance [35] and that it did not believe that she would be liable to be subjected to torture if she was sent back to Indonesia [36]. For the same reasons, the Board also found that she would not be subjected to BOR 3 risk [37], BOR 2 risk [39] or Persecution risk [41]. Furthermore, the Board found that she might opt for relocation, if necessary [45].

Application for leave to apply for judicial review

10.  In her Form 86 dated 6 November 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.  In her affirmation in support of her application dated 6 November 2018, the applicant relied upon the following grounds:

(1)  she was not provided with legal assistance for her appeal to the Board;

(2)  the Board’s Decision was not translated to her;

(3)  the Adjudicator was in error to find that she could relocate to another place without taking into account that she would not be able to maintain her relationship with the other woman in anywhere in Indonesia; and

(4)  the Director cherry-picked the Country of Origin Information in a uniform way to reject the claims.

DISCUSSION

The Director’s Decision

12.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

13.  The applicant has not set out any exceptional circumstances.

14.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

15.  The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

16.  The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered that she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her. Her friend had explained the hearing bundle and the Board’s Decision to her.

17.  I put the Board’s findings to her for her comments. She said that she was crying when she answered the Adjudicator’s questions and she was not clear about those questions. She said that she had told the Adjudicator about her problems. The Adjudicator had asked her if she needed a break or rest. She said no and asked the Adjudicator to continue with his questions.

18.  I find that the Adjudicator had discharged his duties properly in the hearing.

19.  It is obvious that the Board had not challenged the facts of her claim. It applied the relevant law and Convention to her case and came to the conclusion above.

20.  The applicant has no absolute right of free legal representation at every stage of the proceedings. It would be sufficient if she was provided with legal representation at the screening stage. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22. Ground (1) fails.

21.  Ground (2) is inconsistent with what she said in court.

22.  Ground (3) is her opinion without any evidence in support of it. However, this ground is not covered under the Convention.

23.  Ground (4) is her opinion without any evidence in support of it.

24.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

25.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave for the intended judicial review. Accordingly, I dismiss her 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