KASIANI EDY SUSILO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1956/2019

[2024] HKCFI 2533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1956 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;            or
	consideration of 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 Ms Kasiani Edy Susilo (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 30 May 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 31 July 2017 (“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 7 June 1979 in East Java, Indonesia.

3.  She received 9 years of education and worked as a foreign domestic helper in Hong Kong.

4.  She first came to Hong Kong in 1999 to work as a foreign domestic helper. Her last employment contract was terminated in 2011. She was allowed to stay in Hong Kong for 14 days after termination of her employment contract but she overstayed in Hong Kong. She was arrested by the police on 6 August 2011.

5.  On 15 August 2011, she made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). She was released on recognizance on 10 September 2011. She failed to report to the Immigration Department as required and absconded since 17 December 2012. Due to the Applicant’s failure to return the completed claim form, the CAT Claim was deemed as withdrawn on 4 December 2012.

6.  The Applicant was re-arrested by the police on 21 November 2013. By written submissions dated 23 November 2013 and 9 December 2013, the Applicant lodged the Claim.

7.  The Applicant gave birth to her daughter, Cloye Anna Kasiani Susilo (“Anna”), in Hong Kong on 19 September 2016. By a written submission dated 24 November 2016, the Applicant lodge a non-refoulement claim for Anna (“Anna’s Claim”) The claim form for Anna’s Claim indicated that the claimed fear which might happen to Anna if she were returned to Indonesia was the same as the Applicant. Thus, Anna’s Claim was included as part of the Claim when the Director considered the Claim.

8.  At the hearing before this court on 29 August 2024 (“Hearing”), the Applicant confirmed that she had given birth to a son (“Son”) after Anna. Both Anna and the Son are permanent residents of Hong Kong. As such, Anna does not need to pursue Anna’s Claim further.

The Claim

9.  The Applicant relied on the following facts for her claim. She married her husband (“E”) in about 1996, when she was 17. She gave birth to their children in 1997 and 2001.

10.  The Applicant was not happy with E because of how E raised their children and how E managed the money she sent from Hong Kong. She had had no contact with E for some years.

11.  The Applicant met a man named William (“William”) in around late 2012 and they started a romantic relationship in around late 2013. She became pregnant with his daughter in early 2016 and gave birth to Anna on 19 September 2016. At the Hearing, the Applicant said that William is also father of the Son.

12.  As stated above, the Applicant lodged claims for non-refoulement protection for herself and Anna. This intended judicial review application only concerns the Claim as Anna has acquired the status of permanent resident in Hong Kong and does not need to pursue Anna’s Claim further.

13.  In the Claim, the Applicant claimed that it would not be safe for her to return to Indonesia because she would be arrested for adultery. She also feared that E would harm her and Anna when he found out about her relationship with William. She had informed her family about having a daughter in Hong Kong and they did not approve of her actions because she was a married person. The Applicant claimed that it would be difficult for her to live in Indonesia because of the lack of support by her family and the difficulty with finding work.

14.  She informed this court at the Hearing that she had already divorced E and the risk of harm by E and the Applicant’s family because of her relationship with William had ceased but she would still face the financial difficulties for raising Anna and the Son if she were refouled to Indonesia.

15.  The Applicant had previously mentioned that an outstanding loan was another source of concern but she had informed both the Director and the Board that she no longer relied on this ground in her claim for protection (§§12.6-12.7 of the DOI Decision and §27 of the Board’s Decision).

Procedural history

16.  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 (the “BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) 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.

17.  By the DOI Decision, the Director refused the claims by the Applicant and Anna. The Applicant later filed an appeal/petition to the Board (“Appeal”) on behalf of herself and Anna. By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

18.  On 11 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision by herself only. As stated above, Anna is no longer pursuing Anna’s Claim.

19.  The Applicant filed her supporting affirmation on 11 July 2019 (“Supporting Affirmation”). She also lodged her written submissions dated 12 August 2024 (“Submissions”) with the court and made oral representations at the Hearing.

The DOI Decision

20.  After considering all the relevant circumstances, the Director was of the view that there was no substantial ground for believing that the Applicant or Anna faced any risks of harm from (1) the Applicant’s own family; (2) E’s family or (3) the Indonesian community in general.

21.  The Applicant claimed that she told her family about her daughter and they did not like what she said and refused to hear her situation. The Director found that this did not mean her family had issued any threat towards her or that they would consider harming her.

22.  The Director found that if the Applicant’s family were seriously considering harming her upon her return, they would probably have given a stronger reaction to the news about the Applicant’s relationship with William in their past communications.

23.  The Applicant confirmed at the Hearing that risk of harm from her family arising out of her relationship with William and the birth of Anna had ceased as she had already divorced E.

24.  As for E’s family, the Applicant’s evidence to the Director and the Board was that she had lost contact with E for many years. It was pure speculation on her part to claim that E would harm her or her daughter.

25.  The Applicant also confirmed at the Hearing that risk of harm from E’s family arising out of her relationship with William and the birth of Anna had ceased as she had already divorced E.

26.  As for the Applicant’s claim that the Indonesian community (particularly the Muslims) and Indonesian government would not accept her or her daughter, the Director found that her fear was based on hearsay evidence only. They had never been targeted for ill-treatment in the past and her claim about the risks from the Indonesian community was speculative at best.

27.  On the issue of state protection, after considering the relevant country of origin information (“COI”) the Director found that there might be some problems with efficiency within the Indonesian authorities, particularly when it came to protection of women and children. However, there were objective indications in COI that the Indonesian authorities took steps to improve the effectiveness of public authorities. Further, there were other organizations in Indonesia for the Applicant to seek protection or assistance from, such as The Female Headed Family Empowerment program and Rifka Annisa.

28.  The Director further found that internal relocation would be viable. With the ceasing of risk of harm from the Applicant’s family and E’s family, the Applicant does not need to consider relocation at all.

29.  For the reasons set out in the DOI Decision, the Director rejected the Claim and Anna’s Claim.

The Board’s Decision

30.  The Board carefully considered the materials relied on by the Applicant and her submissions at the Board’s hearing. It accepted that the Applicant subjectively feared for the situation of herself and Anna in Indonesia and that the Applicant preferred to remain in Hong Kong because her friends supported her.

31.  The Board noted that adultery was not a criminal offence in Indonesia as of the date of the hearing, although there was an unsuccessful attempt to criminalize it in 2017 and the debate about criminalizing adultery was “ongoing”.

32.  The Board accepted the Applicant’s submissions that the Applicant and Anna fell within certain social groups and that they faced potential discrimination in Indonesia. However, the Board noted that there was nothing to suggest that the treatments they might face upon their return were serious enough to amount to torture, persecution or CIDTP or pose risk to their lives.

33.  The Board had invited the Applicant to make further submission on the danger they may face upon their return but she did not make any further submission.

34.  In the circumstances, the Board found that the Applicant had failed to establish any of the proscribed risks of harm for claiming protection for herself or Anna and that the Applicant had failed to establish their cases on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

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

36.  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”.

37.  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

38.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only stated that:

“I would like to apply for judicial review as my problem is still not solved. Please review my case, as my life will be in danger if I go back my country. Please save my life and let me stay in Hong Kong until finish my problems. Please review the decisions by Immigration and Torture [Claims Appeal Board].”

39.  She produced no further supporting documents.

40.  In the Submissions, the Applicant submitted that:

“I don’t want go back Indonesia, because in Indonesia I don’t have anyone to support my life and my kids life. I’m in Hong Kong have 2 kids in Hong Kong, my kids take CSSA for support my kids, because my kids father can’t support my kids.

My 2 kids is permanent resident in Hong Kong, and they don’t want go back Indonesia, because they Hong Kong people. Please give me live in Hong Kong, because only in Hong Kong I feel savety [sic].”

41.  At the Hearing, the Applicant submitted that her kids were receiving comprehensive social security assistance (“CSSA”) in Hong Kong as William, their father, was 73 years old and unable to support them. William had to rely on his own children for financial support. If she were to be refouled to Indonesia with her kids, CSSA would cease to be paid for her kids and she would have financial difficulties to raise them.

42.  In the DOI Decision and the Board’s Decision, the Director and the Board had set out the reasons for their respective findings leading to their decisions in rejecting the Claim and the Appeal.

43.  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.

44.  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.

45.  The Board found that the Applicant’s feared harm was not serious enough to justify granting of non-refoulement protection. The Board formed the view that reasonable state protection was available and internal relocation was a real possibility for the Applicant in Indonesia. 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 errors of law, procedural unfairness or irrationality. The Applicant had also confirmed at the Hearing that her feared harm from her family and E’s family had ceased. Her remaining problem was financial difficulties to raise her children in Indonesia. This is no ground for the Applicant to claim non-refoulement protection for herself.

46.  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 has no realistic prospects of success.

Conclusion

47.  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