RESTI ANDRIYANI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 756/2021

[2021] HKCFI 3515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 756 of 2021

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 refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Indonesia who arrived in Hong Kong on 12 March 2019 with permission to remain as a visitor up to 11 April 2019 when she did not depart and instead overstayed and was arrested by police on 9 March 2020. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her stepfather and/or his Muslim friends for being a female-to-male transgender and/or discrimination or persecution by the Muslim community. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Wonosobo, Central Java, Indonesia when she discovered at a young age that she wanted to be a boy and dressed and behaved as such. After her father passed away, her mother remarried and the family moved to live with her step-father during which her step-father as a straight Muslim was always harsh and abusive towards her, and after an incident in 2007 when she had a fight with her step-father over her sexual orientation during which he cut her with amachete, the Applicant fled from her home to take shelter in a friend’s place in another district, and later in the same year she left school to work as a domestic helper in the Ngawi Regency where she soon formed the desire to change her sex to become a man and started to date females.

3.  In 2012 the Applicant came to Hong Kong to work as a foreign domestic helper, and in 2017 she underwent some hormonal injection for her female-to-male transgender process and started to grow a moustache and also experienced a voice change.

4.  In 2018 she returned to Indonesia for holiday during which she stayed in her mother’s place for several days in the absence of her step-father who was then out of town. After her return to Hong Kong to continue with her employment, she had no further contact with her mother.

5.  Upon completing her last employment in February 2019, the Applicant left Hong Kong but returned on 12 March 2019 as a visitor with permission to stay up to 11 April 2019 when she did not depart and instead overstayed until 9 March 2020 when she was arrested by police, and after being referred to the Immigration Department, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 August 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 24 August 2020 the Director of Immigration (“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”).

7.  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 step-father or his Muslim friends upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any threats from her step-father whom she had not seen since 2007 and before her sex-change or any of his Muslim friends at all when none of them was aware of her transgender situation other than her own speculations, that in any event in the absence of 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 there are progress being made in Indonesia to accept and protect LGBT groups, and that reasonable internal relocation alternatives are available in Indonesia with a large population of 267 million people spread across a vast territory it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Indonesia 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.

8.  On 4 September 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the decision of the Director, and for which she attended an oral hearing on 28 January 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 April 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s evidence as to her claim on the basis of her account that she has identified herself as a male, that she is a transgender man and a lesbian, that she was open with her gender identity and sexual orientation from a young age, and that she fears of harm as a result from her step-father and his Muslim friends as well as discrimination or persecution from the Muslim community in her home country, but found no reliable evidence or reason to believe that after all the years since her last contact with her step-father in 2007 that he would still have any adverse interest in her, that in any event in the absence of any official involvement that state/police protection would be available to the Applicant to negate any such risk upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located by her step-father or his Muslim friends.

10.  As for her claimed fear of discrimination and persecution from the Muslim community on account of her gender identity and sexual orientation upon her return to Indonesia, the Board found no evidence of any state instigated, acquiesced, sponsored or condoned discrimination or persecution against LGBT people in Indonesia, and that relevant COI show that the Indonesian government does not encourage discrimination against LGBT people,  that there is no law against LGBT activities in Indonesia, and while there may be some social and jobs discriminations against LGBT people in some areas of the country, the government prohibits any criminal acts against them and has a functional legal and penal system to protect them from violence or criminal acts against them, and although it is accepted that the Applicant may suffer certain social discriminations and restrictions on account of her gender identity and sexual orientation, such discriminations and restrictions will not be sufficiently severe by intensity duration or repetition to constitute persecution or torture or CIDTP or any real or immediate risk to the Applicant upon her return to her home country which can be further reduced or negated by relocating to large cities that are more receptive to transgender and gay people such as Jakarta or Bali that it concluded that the Applicant has failed to establish any real risk of any proscribed harm or persecution upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.      

11.  On 25 May 2021 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forth the following grounds for her intended challenge:

(1) That the Director and the Board reached their decisions wrongly in assessing her non-refoulement claim;

(2) That their decisions were not reasonable or fair as required by the Wednesbury test; and

(3) That they failed to take into account that her right to life must be protected from extra-judicial killings that she may face if deported to her home country.  

12.  Putting aside the fact that the Director’s decision is no longer susceptible to judicial review after the Applicant had brought her appeal to the Board (see Moshin Ali [2018] HKCA 549), these grounds are just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how did the Director or the Board err in the decisions, or in what way were the decisions wrong or unfair or unreasonable, or how would extra-judicial killings be relevant to her claim even on the basis of her own base. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.  In the Applicant’s case, the Board rejected her claim for the very thorough and detailed analysis and reasoning set out in paragraphs 41 – 186 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim as well as with ample COI available before the Board which it did go through with careful detailed and proper consideration and assessment of those relevant to her claim, while it also correctly applied the relevant principles in its consideration of the Applicant’s claim of fear of persecution based on her gender identity and sexual orientation. As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.  

15.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia so as to avoid negate and minimize such risk, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave 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