SITI KASTURI v. DIRECTOR OF IMMIGRATION

HCAL 1697/2023

[2023] HKCFI 2953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1697 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;

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 3 August 2023 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.  The Applicant is a 41-year-old Muslim and national of Indonesia who first arrived in Hong Kong in September 2012 with permission to work as a foreign domestic helper, but on 15 January 2017 she was arrested by police for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 2 months.  Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her step-father for refusing to assist him in repaying his debts.

Previous Non-Refoulement Claim          

3.  By a Notice of Decision dated 12 March 2018 the 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”).

4.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that her claimed future risk of harm from her step-father upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real threats from her step-father as alleged, that in any event it was a private family dispute between them 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 258 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 her step-father to locate her.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 20 August 2018 after hearing her in evidence and submissions and upon finding no merits in her claim or her appeal, and that it also confirmed the Director’s decision.

6.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 17 June 2021 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 1994/2018 [2021] HKCFI 1741).

7.  The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 25 February 2022 (CAMP 555/2021 [2022] HKCA 250).

8.  The Applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 5 July 2022 ([2022] HKCA 906), and then by the Appeal Committee of the Court of Final Appeal on 9 June 2023 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.  At about the same time on 8 June 2023 the Applicant while being detained by the Immigration Department at Castle Peak Bay Immigration Centre (“CIC”) in writing to the Director requesting to make a subsequent claim on the basis that she has during her years in Hong Kong formed a lesbian relationship with another Indonesian woman that she fears that she would be harmed or killed by her Muslim family if deported back to her home country in Indonesia and/or that her such homosexual behaviour and activities would be discriminated and persecuted by the predominately Muslim population and the authorities in Indonesia.

10.  There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.  Accordingly, on 23 June 2023 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, and when the Duty Lawyer Service (“DLS”) refused to represent her in her request, the Applicant subsequently by a letter dated 14 July 2023 submitted further evidence in support of her request to make her subsequent claim.

12.  By a Notice of Decision dated 3 August 2023 the Director refused to allow the Applicant to make a subsequent claim on the basis of the previous findings by the Board in her previous claim that it is not accepted that her step-father would harm her because she is a lesbian if returned to Indonesia and that it does not amount to a significant change of circumstances of her case warranting the making of a subsequent claim, that there is no objective information other than her bare assertion and speculation that her fellow residents and village office would harm her, that even if such risk from them due to her sexual orientation is real that it is localized and confined to her hometown instead of the society as a whole that state protection and reasonable internal relocation which had been considered as available in her previous claim will similarly be available to further lower or negate her perceived fear of risk in her proposed subsequent claim, and that objective COI show that there are NGOs available in Indonesia to help women in need and provide support and assistance to vulnerable groups including LGBT and that as a lesbian she can relocate to Bali which is relatively open to such groups to further lower or negate her perceived risk that it is not accepted that there has been a significant change of circumstances since her previous claim was determined or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success.

13.  On 21 September 2023 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation filed on the same day to which she just attached a copy of the Director’s decision, but in her written submissions dated 5 October 2023 and at the hearing of her application she repeated her claimed fear of harm, discrimination, hostility and persecution from her family and/or the Muslim community and/or the Indonesian authorities for being a lesbian, and that she should be allowed to make a subsequent claim on such basis.

14.  Given the fact that the Applicant is without legal representation and in detention by the Immigration Department, and given the seriousness of the issue at hand and the implication of refusing her request to make her subsequent claim by an immigration officer of the same Department that has been detaining her, and that with such refusal would thereby deny her of the 2-tiers screening process of her subsequent claim under USM in which her life and limbs were said to be at stake, the Court will adopt an enhanced standard in scrutinizing the Director’s reasons for refusing to allow her to make her subsequent claim.     

15.  There was no interview held for the Applicant before an immigration officer who proceeded to refuse her request on paper by first referring to the various findings made by both the Director and the Board in her previous claim of fear of harm from her step-father over their debts dispute (see [8] of the Decision), and then set out what was considered to be the Applicant’s proposed subsequent claim as follows:

“9. Turning to your Request, in your letter dated 8 June 2023, you claimed that:-

(a) You would like to stay in Hong Kong. You did not want to return to Indonesia at the moment since in the past six years, you like same sex (female) and for that reason, you requested to be allowed to stay in Hong Kong;

(b) In Indonesia, it is not allowed to have same sex relationship. In your country Indonesia, there are rules against religion, race and tradition. For that reason, most probably you would be punished or even killed because you have same sex relationship.

10. In your letter dated 7 July 2023, you claimed that:-

(a) You were released om recognizance from 2017 to 2023, during which you love same sex. You are Muslim and your family members are also Muslim. However, same sex relationship is not allowed for your religion, as it is not allowed in any area in Indonesia and within the religion;

(b) If you are returned to Indonesia with your same sex partner and your relationship is made known to other people, you will be assaulted by your fellow residents and the village office. It happened to your friends two years ago and so they fled to other countries;

(c) Besides, your step-father strictly followed the rule in the atmosphere around you. You have broken his rules so you were assaulted. You felt worried and depressed because of that incident;

(d) When you were 14 years old, you used to feel worried because you made a mistake. You were required to pray but you did not follow. Your stepfather chased after you and beat you so you fell down. Your left knee was injured so you were hospitalized for two days for surgery. There is still scar on your knee; and

(e) You hoped that you can continue to stay in Hong Kong.

11. In your letter of 14 July 2023, you stated that you did not have a private lawyer because you did not have money to pay for the lawyer. You think you will need a lot of money to hire a lawyer. You also stated that you answered all the questions raised. It was based on the fact of what happened in your life.

12. All the available information/evidence have been carefully considered.  In gist, you are currently in fear of being harmed or even killed by (a) your stepfather and (b) your fellow residents and the village office, because you are a lesbian.”         

16.  The immigration officer then proceeded to find, as noted above, that the Applicant’s proposed subsequent claim due to her fear of harm from her stepfather over her homosexuality does not amount to a significant change of circumstances of her case warranting the making of the subsequent claim, while her fear from her fellow residents or the village office is just her bare assertion and speculation, that if real such risk is confined to her hometown, and as found in her previous claim that state protection and internal relocation alternatives would similarly be available to further lower or negate such perceived risk in her proposed subsequent claim:

“13. Regarding your fear mentioned in paragraph 12(a) above, you asserted that you were assaulted by him in the past because you have broken his rules and you did not follow his requirement to pray. However, you did not provide any cogent evidence to support your assertions. Even if your assertions are assumed to be true, the private dispute between you and your stepfather had already been thoroughly considered in your previous claim (see paragraph 8 above) which was not accepted as substantiated. In particular, the Board did not accept that your stepfather would harm you because you had refused to marry a creditor for any of the reasons you had claimed, or because you were a lesbian, or for any other reason, if you returned to Indonesia (see paragraph 8(j) above). Therefore, your fear from your stepfather does not amount to a significant change of circumstances of your case warranting your making of a subsequent claim.

14. Regarding your fear mentioned in paragraph 12(b) above, you claimed that your friends encountered assault two years ago.  However, you did not clearly mention how it was personally related to your case.  You provided no objective information other than your bare assertion and mere speculation that your fellow residents and the village office would harm you if you returned to Indonesia.  Even if assuming your alleged fear from your fellow residents and the village office due to your sexual orientation really exists, such fear is confined to your hometown which is considered localized and not the society as a whole.  There is a lack of information to show that the whole state will be involved in, indifferent to, or provide any form of encouragement to the local people in your hometown imposing any threats or ill-treatment on you.  In any event, it was assessed in your previous claim that state protection and internal relocation alternatives were available to you to further lower or negate the perceived risk and they will be further discussed in the ensuring paragraphs.”

17.  The immigration officer then as noted went on to discuss in more details at [15] – [18] the available options of state protection and internal relocation to the Applicant by relying on the findings of the case officer in her previous claim, and that according to objective COI there are also NGOs in Indonesia to help women in need and to provide support and assistance to vulnerable groups including LGBT that it would not be unduly harsh for the Applicant to relocate to other areas in her country such as Jakarta, and given her particular concern as a lesbian that she may also consider Bali as according to one COI known as Queer in the World that “While the LGBT rights situation across Indonesia is worsening by the day, Bali has (so far) managed to remain a relatively open pink oasis standing tall against the rising tide of hatred.  As a result, it has become a popular gay haven for those in the rest of Indonesia … Queer travelers should know that Bali is very safe, and one of the most friendly and welcoming destinations we have ever visited.  You do not need to hide your sexuality, but public displays of affection on the streets are generally frowned upon – regardless of whether you are straight or gay.”.   

18.  The immigration officer then concluded that as no new and substantial evidence were found in the Applicant’s request to refute such important factors, i.e. the availability of state protection and internal relocation, that her claimed risk of harm due to her being a lesbian does not amount to a significant change of circumstances since her previous claim was finally determined, and therefore refused her request to make a subsequent claim.

Discussion

19.  While it is open to the Director or his immigration officer in deciding whether to allow a request to make a subsequent claim to adopt measures such as applying robustly those administrative constraints under Section 37ZO (2) of the Ordinance as noted above [10] to prevent abuse of the system by a claimant from making repeated claims without merits so as to prolong his stay in Hong Kong, the Court should ensure that the application of such constraints in a particular case would not prevent a genuine non-refoulement claim with realistic prospect of success from being properly considered by the Director: see Ram Chander CACV 12/2018 [2018] HKCA 585 at para 11.     

20.  In the present case, it appears from the decision that the Director did not take issue with the Applicant’s claim of being a lesbian or having manifested her homosexuality during her past 6 years in Hong Kong and that she has an Indonesian girlfriend, something which the Applicant in fact did disclose to the Board in her previous claim (see [45], [55] and [88] of the Board’s decision dated 20 August 2018).

21.  It seems therefore to me that the immigration officer should have proceeded to apply the proper relevant test when considering whether to allow the Applicant to make a subsequent claim as a gay person seeking non-refoulement protection based on her membership of that particular social group, as laid down by the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department, & HT (Cameroon) v Secretary of State for the Home Department, [2010] UKSC 31, on appeal from: [2009] EWCA Civ 172, when Lord Hope elaborated as follows:

“The test

35. This brings me to the test that should be adopted by the fact-finding tribunals in this country. As Lord Walker points out in para 98, this involves what is essentially an individual and fact-specific inquiry. Lord Rodger has described the approach in para 82, but I would like to set out in my own words. It is necessary to proceed in stages.

(a) The first stage, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. But I would regard this part of the test as having been satisfied if the applicant’s case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case.

(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Office’s Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded. He will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is necessarily tolerable has no part in this inquiry.

(c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. As I said earlier (see para 15), the Convention was not directed to reforming the level of rights in the country of origin. So it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do so if he were not returned. It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin.

(d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.

(e) This is the final and conclusive question: does he have a well-founded fear that he will be persecuted? If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5 will have been established. The applicant will be entitled to asylum.

36. It should always be remembered that the purpose of this exercise is to separate out those who are entitled to protection because their fear of persecution is well founded from those who are not.  The causative condition is central to the inquiry.  This makes it necessary to concentrate on what is actually likely to happen to the applicant.  As Lord Walker says in para 88, the inquiry is directed to what will happen in the future if the applicant is returned to his own country.  An approach which disregards what is in fact likely to occur there in the case of the particular applicant is wrong and should not be adopted.”  

22.  In the same judgment Lord Rodger in paragraph 82 explained the approach in simpler but equally essential terms:

“When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.

If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.

If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.

If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by living “discreetly”.

If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.

If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.

If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted.  Such a person has a well-founded fear of persecution.  To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution.  By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.”  

23.  In the exercise of his discretion whether to allow the Applicant’s request to make her subsequent claim for protection on the ground of a well-founded fear of persecution if returned to Indonesia because she is a lesbian, and in deciding whether she has provided sufficient evidence to satisfy the requirements under Section 37ZO (2) of the Ordinance, it seems to me reasonably arguable that the immigration officer had failed to apply the proper test, or at least to ask himself those relevant questions and to consider what will happen to the Applicant in future if returned to Indonesia by reference to the relevant COI regarding the risk, if any, of persecution to her social group in her home country, but instead just relied on the findings made in her previous claim, which was based on a totally different risk, as to the availability of state protection and internal relocation, or by simply finding that there would be NGOs to provide various support and assistance to further lower or negate the Applicant’s perceived risk which may not be sufficient or even applicable to her case if her fear of persecution is well-founded, and that there did not appear to be any or proper examination or assessment by the immigration officer of the relevant COI whether gay people who lived openly would be liable to persecution in the Applicant’s country of nationality.

24.  In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Director’s decision is reasonably arguable on the grounds that the immigration officer in deciding whether to allow her to make a subsequent claim had (1) failed to apply the proper test or approach in assessing the Applicant’s proposed subsequent claim; (2) wrongly relied on findings in her previous claim and/or failed to make proper or sufficient examination or assessment of relevant COI for her proposed subsequent claim; and (3) wrongly or insufficiently assessed state protection and/or internal relocation as options available to the Applicant to negate the risk of her proposed subsequent claim; and thus meeting the threshold fro leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.                   

Disposition 

25.  Accordingly I grant leave to the Applicant to apply for judicial review of the Director’s decision in refusing her request to make a subsequent claim on the grounds stated above, and direct that she shall file and issue an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Director as respondent of the 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