PIPIN RIYANTI v. DIRECTOR OF IMMIGRATION

HCAL 422/2022

[2024] HKCFI 3465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 422 OF 2022

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 counsel for 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.

(4)  Costs be in the cause; and

(5)  The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

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 13 April 2022 (“Decision”) refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claims 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 38-year-old national of Indonesia who last arrived in Hong Kong on 6 March 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 6 March 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 November 2015, she did not depart and instead overstayed, and on 24 November 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her former husband’s creditor for failing to repay his loan and/or by some followers of the Sunni Islamic Movement Nahdlatul Ulama (“NU”) over their dispute with her father in her home village.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 12 December 2016 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 assessed the level of risk of harm from her former husband’s creditor or those NU followers upon her return to Indonesia as low due to the absence of any past ill-treatment from them, that it is doubtful that they would have any adverse interest in her after all these years since she left the country, that in any event these were private disputes between her husband and his creditor and the NU followers with her father only 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 anyone to locate her.

5.  The Applicant’s appeal against the Director’s decision was then dismissed by the Board on 19 April 2018 after she failed to attend the scheduled hearing for her appeal without any explanation and upon finding no merits in her claim or appeal, and that it also agreed with the Director’s decision which it confirmed.

6.  The Applicant’s late application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 12 November 2020 upon finding no good reason for her serious delay, that none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her appeal process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 2189/2018 [2020] HKCFI 2461).

7.  The Applicant’s subsequent appeal against the Court’s decision was then dismissed by the Court of Appeal on 29 September 2021 (CACV 623/2020 [2021] HKCA 1441).

Request To Make Subsequent Claim

8.  Less than 3 months later on 21 December 2021 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that she in 2020 converted her religion from the Sunni tradition of Islam to the Ahmadiyya branch of Islam which was objected to by her family and not acceptable in most parts of Indonesia that she fears of being harmed or killed or persecuted if refouled to her home country.

9.  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.”

10.  Accordingly, by a letter dated 28 December 2021 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did via her lawyer from Duty Lawyer Service (“DLS”), which can essentially be summarized as follows (see [8] – [9] of Director’s Decision):

(a)  That she met her boyfriend in Hong Kong in 2013 who was a follower of the Ahmadiyya sect, and having developed a romantic relationship with him, she started to study the Ahmadiyya religion together with him;

(b)  That in November 2015 she was introduced by her boyfriend to an Iman Duri Shawal who encouraged her to study the Ahmadiyya religion in depth, which she did even after her boyfriend had relocated to the US in 2016 when they maintained a long-distance online learning together;

(c)  That since 2018 she has been regularly attending a mosque in Tai Wo and participated in monthly gatherings and activities organized by the Ahmadiyya community in Hong Kong;

(d)  That in 2020 she officially converted to Ahmadiyya by undergoing a ceremony held by Iman Duri Shawal in Sai Kung;

(e)  That upon informing her father in Indonesia on the phone of her conversion that he became angry as the whole family and the local community disagreed with her religious conversion that her father threatened to kill her, and that she also fears that other members and neighbours would harm or kill her upon her return to Indonesia;

(f)  That Ahmadiyya Muslims are not acceptable in Indonesia, that the police will not be able to protect Ahmadiyya Muslims, and that she does not know where in Indonesia that is safe for her as an Ahmadiyya Muslim to reside.

11.  In support of her claim the Applicant also produced various documentary evidence including those stated in the Director’s Decision ([10] – [11]):

(a)  Certificate of Conversion issued to her by the Ahmadiyya Muslim Foreign Missions Office dated 25 August 2020 with English translation;

(b)  Copies of photographs of her participating in activities organized by the Ahmadiyya Muslim community in Hong Kong;

(c)  Copy letter dated 30 September 2021 from the Secretary to Hadrat Khalifatul Masih V from UK to the Applicant indicating the acceptance of her initiation into the Ahmadi community;

(d)  An article about Indonesia Ulema Council against the Ahmadiyya religion;

(e)  An article about the situation of Ahmadiyya Muslims in Indonesia.

Director’s Decision Refusing Applicant’s Request

12.  By a Notice of the Decision dated 13 April 2022 the Director accepted that the Applicant’s claimed religious conversion is a significant change in the circumstances since her previous claim was finally determined, but found that such change when taken together with the materials in support of her request as well as those submitted for her previous claim would not give her subsequent claim a realistic prospect of success, as her claimed risk of harm from her family and neighbours was based solely on her own bare assertions and speculations, that those articles submitted by her are all general country information about Ahmadiyya Muslims in Indonesia with none related to her personally that they do not show directly or indirectly that she would be subjected to any risk of such harm, and that even if such risk were real that it was a problem arose from a purely private dispute between her and her father and was confined to her home area that state protection and internal relocation alternatives would be available to the Applicant upon her return to Indonesia to negate such risk that her request to make a subsequent claim was refused.

Applicant’s Leave Application for Judicial Review and Grounds

13.  On 31 May 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and upon subsequently being granted Legal Aid and with legal representation, she puts forward the following grounds as amended for her intended challenge:

(1)  That the decision is illegal and/or irrational in that the Director failed to consider adequately or at all the relevant COI submitted by the Applicant in particularly the updated situations of Ahmadiyya Muslims in Indonesia and/or erroneously dismissed their relevancy;

(2)  That the decision is illegal in that the Director erred in law in failing to conduct a full and up-to-date assessment of the current situation regarding Ahmadiyya Muslims in Indonesia on the issue of state protection;

(3)  That the decision is illegal in that the Director erred in law in failing to properly identify and apply the relevant law on the issue of internal relocation;

(4)  That the decision is irrational for the Director to conclude that the Applicant’s intended subsequent claim does not have a realistic prospect of success.

14.  Mr Jonathan Ip of assigned counsel for the Applicant submits that since the Director had accepted that the Applicant’s religious conversion to an Ahmadiyya Muslim to be a significant change in the circumstances since her previous claim was finally determined, the only issue was for the Director to determine whether such change would give her subsequent claim a realistic prospect of success, and in doing so the same principles of high standards of fairness and anxious scrutiny equally apply in the inquiry and investigation of all relevant materials, including a full and up-to-date assessment of relevant COI in particularly as regard the current situations of Ahmadiyya Muslims in Indonesia in order to properly assess and determine the Applicant’s intended subsequent claim of fear of being harmed by her family and neighbours and/or persecution by the general Sunni Muslims community due to her religious belief.

Discussions

15.  Firstly, there is no question in my mind that those administrative constraints imposed under Section 37ZO of the Ordinance as noted above are designed to prevent abuse of the 2-tiers screening process under USM by a claimant from making repeated non-refoulement claims without merits or basis so as to prolong his or her stay in Hong Kong, and that the Director and his officers in deciding whether to allow a request to make a subsequent claim are obliged to adopt those filtering measures robustly, including to take into account any finding of credibility or fact made in relation to the claimant’s previous claim where appropriate under subsection (3) thereof, but equally the Court should ensure that the application of such constraints in a particular case would not prevent a genuine claim with realistic prospect of success from being properly considered and determined under the USM: see Ram Chander, CACV 12/2018 [2018] HKCA 585 at para 11 of the judgment.

16.  Furthermore, in considering such a request to make a subsequent claim, those principles applicable in the determination of non-refoulement claims and as laid down by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at paras 51 - 55, including the application of high standards of fairness, and to make sufficient inquiry and consideration of the relevant COI as well as a proper understanding of the conditions in the claimant’s country of origin, should similarly apply to the consideration of the request.

17.  Henceforth, before proceeding to consider whether it is reasonably arguable under the proposed grounds of the Applicant that the Director, and for that matter his immigration officer, had failed to do so in the consideration of her request as submitted by Mr Ip, it would be relevant to first set out the Director’s reasons in full for the refusal of the Applicant’s request in the decision as follows:

“12. After careful examination, it is noted that your claimed threats from the loan shark and the NU followers has been duly considered in your previous claim (see paragraph 7 above). It is it is also noted that the threats posed upon you by your father, your other family members and neighbours if you are to be returned to Indonesia due to your conversion to Ahmadiyya Muslim as asserted in the Statement have not been raised in your previous claim and may be taken as a change of circumstances since your previous claim was finally determined. However, it is solely your bare assertion that you had informed your father about your conversion to Ahmadiyya Muslim and you were told by your father that he would kill you if you returned to Indonesia. Besides, it is merely your speculation that you believed that your father must have told your other family members and neighbours and they would also harm you when you go back. As a matter of fact, apart from your bare assertion, it was solely your speculation without any cogent evidence to support your belief that your father, your other family members and your neighbours have the real intention to cause harm or even kill you due to your conversion to Ahmadiyya Muslim. Moreover, even if your bare assertion about the new threats posed upon you exist at all, the problem you had with your father was purely a private dispute and it is still confined to your home area. The fact remains that you failed to refute the findings in your previous claim and TCAB Decision as to why internal relocation is not viable to you given Ahmadiyya Muslim is not uncommonly found practicing by people in different parts of Indonesia. Besides, as assessed in your previous claim, state protection will be available to you if you are to be returned to Indonesia should you face any threats from anyone (see paragraph 7(b) above) and its is solely your mere speculation that the police in Indonesia cannot protect you as Ahmadiyya Muslim is not acceptable in most parts of Indonesia and they would not be able to handle religious confrontations.

13. Turning to the supporting documents as listed at paragraph 10(i) to (iii) above, let alone their authenticity, they at most could show that you had participated in activities organized by the Ahmadiyya Muslim community in Hong Kong as claimed and that a certificate was issued by the Ahmadiyya Muslim Foreign Missions Office in UK to indicate that they have received your letter requesting to be initiated into the community as Ahmadi and your request was accepted by them as well as a letter to acknowledged receipt of your letter to Huzur e Anwar seeking prayers for a successful outcome of your immigration. All of these documents have been taken into account by us when considering your Request but would not advance your Request further.

14. Similarly, the supporting documents listed at paragraph 11(i) & (ii) above which have also been taken into account by us when considering your Request. All of them are general country information about Ahmadiyya Muslim in Indonesia, none of which were related to you personally and they do not show, whether directly or indirectly, that you will be subjected to any risk of harm.

15. In the light of the above, while it is accepted that there is a significant change in the circumstances since your previous claim was finally determined, it is not considered that the change, when taken together with other materials submitted in your Request and those submitted in support of your previous claim, would give your intended subsequent claim a realistic prospect of success. Your Request is therefore refused, i.e. you may not make a subsequent claim for non-refoulement protection under the USM.”

18.  It is against such findings of the Director that I shall now return to the Applicant’s complaints, which are essentially about the Director’s failure to adequately consider all the relevant matters and/or COI in the consideration and assessment of the Applicant’s claim of risks of harm arising from her religious conversion to be an Ahmadiyya Muslim upon her return to Indonesia, and errors in law in his assessments on the availability of state protection and internal relocation to the Applicant upon her return to Indonesia.

19.  Given the fact that the Director did not raise any issue with the Applicant’s religious conversion, and accepted that it amounted to a significant change of circumstances since her previous claim was finally determined, having thus satisfied the first requirement under subsection 2(a) of Section 37ZO, the only issue that falls for determination was whether the Applicant had in writing also satisfied the requirement under subsection 2(b) that such change when taking together with the material previously submitted in support of her previous claim would give her subsequent claim a realistic prospect of success.

20.  In doing so the Director must properly identify and ascertain from the Applicant’s statement and the supporting documents provided by her as to the source of risk of harm which she claimed to fear in her home country of Indonesia, of which she clearly stated as not just from her father and other members of the family or her neighbors, but more significantly also from the general Muslim community as well as the measures taken at the national, provincial and district levels by the Indonesian authorities to restrict the Ahmadis from practicing and propagating their religion which clearly involve the issue of state actor, as the Applicant so argued in her statement to the Director, and in the letter dated 21 December 2021 from her lawyer which set out the details of her intended subsequent claim, in particularly in paragraph 3 entitled Realistic Prospect of Success (HB/11/133, at 134 - 135) in which she referred to the following risks from both state and non-state actors against the Ahmadis in Indonesia:

“3. Realistic Prospect of Success

3.1 Taken together with the materials submitted in her previous claim, it is evident from the country of origin information (“COI”) below that the claimant’s conversion has given her subsequent claim a realistic prospect of success.

3.2 The practice of Ahmadiyya in Indonesia is subject to national, provincial and district restrictions. In 2005, the Ulema Council – Indonesia’s highest Islamic scholarly body, made up of Islamic clerics from around the country – issued a fatwa declaring that the Ahmadiyya Muslim Community was a heretical organization, and called for a nationwide ban. In response, the Indonesian government issued a decree allowing Ahmadis to practice their faith, however banning them from spreading their religion, imposing a maximum five-year prison sentence for violating this.

3.3 Between 2006 and 2011, there was a series of attacks against Ahmadis in mosques across Indonesia, in which 3 were killed, dozens were injured, and hundreds were displaced from their homes. Some provinces have gone as far as to ban all Ahmadi activities and order the closure of Ahmadi mosque, and in Jakarta, authorities regularly close Ahmadi mosques. Ahmadis are also in danger of vigilante attacks at local levels, and in 2018 mobs attacked Ahmadi communities in East Lombok and West Nusa Tenggara. Oftentimes Ahmadis report that violent groups prevent them from entering mosques during Friday prayers, with police refusing to assist. In some areas Ahmadis are unable to obtain identity cards as local authorities refuse to display their religion as ‘Muslim,’ in turn this affects their access to government services such as healthcare.

3.4 According to a recent study, there has been a steady rise in violent attacks against Ahmadis over the last 20 years, and it is likely that such violence might continue to rise or escalate in the future.

3.5 In light of the above, the significant change in the claimant’s circumstances contributes to a realistic prospect of success for her subsequent claim.”

21.  In support of such claim the Applicant also included various footnotes that corresponded to the relevant sentences or paragraphs stated above in her submissions to indicate the sources of such information or evidence of risks posted to Ahmadis in Indonesia for the Director’s reference and consideration, as well as the following COI supplied to the Director (HB/18 -24/148 – 174):

(a)  Article entitled “Indonesia: Ahmadiyya Community at Risk in Indonesia” published by the Amnesty International dated 16 March 2011;

(b)  Article entitled “Indonesian Islamic sect say they’re “denied state IDs” over their beliefs” published by The Reuters dated 21 June 2017;

(c)  Article entitled “Indonesia: Homes of religious minority destroyed by mob” published by Amnesty International dated 22 May 2018;

(d)  Article entitled “DFAT Country Information Report: Indonesia” published by the Department of Foreign Affairs and Trade of Australia dated 25 January 2019;

(e)  Article entitled “It’s a Jihad”: Justifying Violence towards the Ahmadiyya in Indonesia” published by Research Center for Society and Culture, Indonesia Institute of Science dated 15 May 2020;

(f)  1-paged COI Material;

(g)  3-paged COI Material.

22.  It is against these submitted materials and information that Mr Ip argues for the Applicant that the Director totally neglected and failed to address any or being selective of the submitted COI materials that had demonstrated state-imposed discriminatory policy/law against the Ahmadis at various government levels, including the 2008 Joint Ministerial Decree criminalizing the spreading of the Ahmadiyya faith, and the common and increasing violence against Ahmadiyya Muslims by non-state actors, while state actors including the police are unwilling and/or unable to protect the Ahmadis, and that all these are occurring in various parts of Indonesia and not just limited to the Applicant’s home district.

23.  Accordingly Mr Ip submits that it is reasonably arguable that the Director in refusing the Applicant’s request to make her intended subsequent claim failed in the following manners:

(a)  unlawfully failed in his duty to make a full and up-to-date assessment of the Applicant’s case including her submitted COI materials by just referring to 2 of them only;

(b)  erred in law by just brushing aside the submitted COI as general country information about Ahmadiyya Muslims in Indonesia in general with none related to the Applicant personally;

(c)  irrational conclusion in that the Applicant’s intended subsequent claim is just a private dispute confined to her home area notwithstanding the updated COI materials;

(d)  erred in law in assessing state protection and internal relocation are available despite official involvement by state actors as evidenced by relevant COI.

24.  Given those findings by the Director in his decision as noted above in refusing the Applicant’s request to make her intended subsequent claim, I agree that her intended application for judicial review of the Director’s decision is reasonably arguable on the basis of her proposed grounds as stated above, and meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Disposition

25.  In the premises, and for these reasons I grant leave to the Applicant to apply for judicial review of the Director’s decision on the basis of her proposed grounds, and accordingly direct that she shall file and issue the 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, and with legal aid taxation.

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