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HCAL 2002/2019
[2024] HKCFI 2593
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2002 OF 2019
________________________
BETWEEN
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Pujimmi Sukat |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
________________________
| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
16 September 2024 |
| Date of Judgment: |
15 October 2024 |
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J U D G M E N T
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THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 10 June 2019 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 16 September 2024.
The applicant
3. The aged 45, is an Indonesian. She last arrived in Hong Kong as a visitor on 29 March 2009 and she overstayed since 29 April 2009. The applicant made a torture claim on 12 August 2009. She was arrested by the police on 28 February 2013 for taking up employment and was sentenced to imprisonment of 12 months on 8 April 2013. The applicant’s torture claim was rejected on 12 September 2013. She lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 18 September 2013. The claim was made on the basis that, if refouled, she would be harmed or even killed by the parents of her neighbour girlfriend because they believed that she had caused her death. The applicant also feared rejection by the Indonesian community for being a lesbian.
4. According to the applicant, she fell in love with her neighbour girlfriend and started a relationship with her. In mid-2004, their relationship ended after her neighbour girlfriend was forced by her family to marry a man, though they still kept in touch with each other. In early 2005, while the applicant was working in Singapore, her parents informed her that her neighbour girlfriend had committed suicide.
5. The applicant visited her neighbour girlfriend’s home in around November 2005 after returning from Singapore. Her neighbour girlfriend’s family were mad at her and even threatened to kill her as they believed that she had caused her death.
6. To protect herself from further threats, the applicant left Indonesia and came to Hong Kong to work as a foreign domestic helper in February 2006. Although she went back to Indonesia shortly in 2009, she did not dare to return to her hometown in order to avoid confrontation with her neighbour girlfriend’s family. Eventually, the applicant came back to Hong Kong on 29 March 2009 as a visitor.
7. While in Hong Kong, the applicant maintained contact with her family and was warned not to return to Indonesia because her neighbour girlfriend’s family still held grudges against her. Furthermore, the applicant felt stressful about returning to Indonesia because the Indonesian community had not yet accepted lesbians.
8. The applicant was of the view that she could not seek protection from the police because she could not afford bribing them. She also considered internal relocation not viable because she had no relative to rely on elsewhere and that the opposition against lesbians is countrywide.
9. Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 24 October 2018 (“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”); and
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”).
11. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence or low intensity and frequency of past ill-treatment from her neighbour girlfriend’s family indicated a small future risk of harm upon her return to Indonesia [15]-[16]; (ii) there was no evidence showing that her neighbour girlfriend’s family had means to locate the applicant anywhere within Indonesia [17]; (iii) state protection would be available and there were also non-governmental organisations protecting the rights of Lesbian, Gay, Bisexual, Transgender and Intersex (“LGBTI”) communities [18]-[22]; (iv) internal relocation would be viable [23]-[25] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31] or Persecution risk [32]-[36].
The Board’s Decision
12. The applicant appealed the Director’s Decision to the Board. On 17 April 2019, the Board conducted an oral hearing.
13. The Board found that the applicant was largely consistent with her evidence [64]. The Board accepted her sexuality as a lesbian, but did not accept her claimed threat from her neighbour girlfriend’s family due to the inconsistencies in the timeline of the events described [65]-[67]. In any event, there was no evidence that her neighbour girlfriend’s family intended to act on their threats and their grudges against the applicant should have dissipated given the passage of time [68].
14. Upon consideration of the country of origin information (“COI”), the Board accepted that discrimination against LGBTI exist in Indonesia, but there is no indication that they face systematic violence. Meanwhile, there are also ongoing LGBTI advocacy in Indonesia and there are organisations established to change people’s perceptions towards LGBTI. The Board believed that the applicant could associate with these LGBTI networks and support groups and if she so wished, explore options regarding gender reassignment [70]-[91].
15. The Board is not satisfied that upon the applicant’s return to Indonesia, she would face serious harm from her neighbour girlfriend’s family or the local community. In any event, state protection and internal relocation would also be available to her. COI further showed there are organisations to help repatriated Indonesians [92]-[97].
16. 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 or Persecution risk [14]-[28], [100]-[113]. The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.
Application for leave to apply for judicial review of the Board’s Decision
17. The applicant has filed Form 86 dated 15 July 2019 for leave to apply for judicial review of the Board’s Decision.
18. The applicant has raised the grounds as set out below in support of her application.
(1) The hearing bundle was given to her shortly before the hearing and the contents are in English, for which she was not provided with interpretation service. As a result, she was confused at the hearing. However, she had answered all the questions put to her by the Board.
(2) The Board had relied upon the source of news which is not officially recognized or it is simply hearsay, and outdated authorities, resulting in its speculation that it is safe for her to return to her country.
(3) There was no screening for BOR 2 risk.
(4) The Board had not been to her country to realize the real situations there.
(5) The Board had unlawfully fettered its discretion by refusing her appeal.
(6) The Board had acted in an unfair manner.
(7) The Board’s Decision is unreasonable or irrational in the public sense.
(8) The Board had failed to meet the greater care and duty owed to her as a self-represented claimant.
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 simply asked the Court to review the Board’s Decision.
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. From the Board’s Decision, the adjudicator had asked the applicant quite a lot of questions and had allowed her to give explanation to the issues she had raised with her. In my view, the Board was entitled to come to its views above.
23. As to the grounds raised by the applicant under paragraph 18, grounds 2, 5, 6, 7 and 8 are her bare assertions without evidence in support and they fail[2]. According to the Board’s Decision, she did not ask for an adjournment for her preparation for the hearing. She also admitted that she was able to answer all the questions from the Board. She is not entitled to free interpretation service all the time throughout the proceedings[3]. Ground 1 fails. Ground 3 fails as she had screening before the immigration officer. Ground 4 also fails as the Board could rely upon the country of origin information instead of going to her country physically. All of the grounds fail.
24. The applicant has raised no valid ground to challenge the Board’s Decision.
25. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
26. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
DISPOSITON
27. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant appeared in person.
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115
[2] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
[3] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
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