SITI-KHOERIYAH-SUKARTO alias SITI KHOERIYAH SUKARTO alias SUKARTO SITI KHOERIYAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 370/2023

[2023] HKCFI 1203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 370 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;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 10 February 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) dated 16 November 2022.  The Applicant has not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing pursuant to Order 53 Rule 3(3) of the Rules of High Court (Cap 4A). 

2.  The Applicant is an Indonesian national, now aged 39.  She last entered Hong Kong on 23 May 2020 for employment as a foreign domestic helper.  She did not leave upon termination of her employment contract and became an over-stayer since 24 May 2022.  On 15 August 2022, she was arrested for overstaying and other offences for which she was convicted and sentenced to about 2 months and 3 weeks’ imprisonment.  Then she raised her non-refoulement claim by way of written signification dated 27 August 2022.

3.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. Her claim was dismissed by the Director’s Notice.  Her appeal against the Notice was dismissed by the Decision of the Board.  She now applies for leave to apply for judicial review of that Decision.  

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance from the Duty Lawyer Service.  She claims that she will be killed by her brother and discriminated by the general population because of her sexual orientation, if returned to Indonesia.

5.  The Applicant was born in Jawa Tengah, Indonesia. She is single and has received 9 years of formal education.  Since high school, she identified herself as a lesbian.  When she introduced her partner to her parents in around 2000, they disapproved of the relationship as their family was a traditional Muslim family.  Her parents demanded her to end that relationship.  Her brother was furious and accused her of being a disgrace to the family.  He made verbal threats to kill her and demanded her to leave home at once.  Though there was no physical altercation during that incident, the Applicant left home.  She sought refuge at her elder sister’s home in Jakarta from 2000 to 2002. 

6.  Sometime in 2002, her brother turned up in her elder sister’s home unannounced.  He berated the Applicant and kicked her twice. The Applicant fled and sought refuge in her friend’s home thereafter.  Out of fear, she began to plan to leave Indonesia for employment opportunities overseas.  That was the last contact she had with her brother.

7.  The Applicant worked as a foreign domestic helper in Singapore from 2003 to 2005 and then in Hong Kong from May 2005 to May 2022.  She returned to Indonesia in between contracts and stayed in Jakarta without problems.  Her parents have now passed away.  She was last informed by her elder sister in 2018 on the phone that her brother still harbours anger towards her for being a lesbian.  The Applicant continues to fear that her brother would kill her, if she returns to Indonesia.

8.  The Applicant also claims that she will face discrimination and persecution in Indonesia because of her sexual orientation. This is because the majority of the population are Muslims who oppose homosexuality.  She would not be accepted socially and would not be protected as homosexuals are commonly stigmatised.  Hence, she claims she could not relocate within Indonesia.

The finding of the Board

9.  The Applicant testified at the hearing before the Board.  While the Board considered her testimony was consistent with her previous evidence before the Immigration Department, it is extremely vague in relation to all aspects of her claim.  When asked why she believed her brother is still a threat given that over two decades have passed since their last contact, the Applicant’s response was neither here nor there; she replied that her brother might still be able to find her from other people.  As to her claim of discrimination from the general population, the Board noted that she made no references to this particular claim at all at the hearing.  On her own evidence, she had never experienced any problem because of her sexual orientation other than at the hands of her brother in their village before she left there in 2000.  She has returned to Indonesia numerous time since working overseas without any problem, though living in Jakarta.  In the circumstances, the Board found that the Applicant’s claim that she would face serious harm should she return to Indonesia because she is a lesbian is not credible.

10.  Even accepted that the risk of harm from her brother was real, the Board found the Applicant could easily avoid the harm by internal relocation within Indonesia, staying for example in Jakarta where she had stayed many times without problem.  Furthermore, the Board found on the basis of authoritative and credible country of origin information that though members of the LGBTI community may face problems in Indonesia, these problems may be less serious in Jakarta and that accords with the Applicant’s own experience.

11.  Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board found the Applicant had failed to discharge the burden of proving her entitlement to protection under any of the four applicable grounds under the USM.  Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

13.  The Applicant did not advance any grounds for judicial review in her Form 86.  In her supporting affirmation she only repeated her request for protection.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Conclusion

14.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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 a very high standard of fairness.  The Board found the Applicant’s evidence vague on details in all aspects of her claim and was not satisfied that she would face serious harm should she return to Indonesia because of her sexual orientation.  Even accepting her claim of fear from her brother were real, on the basis of credible country of origin information, the Board was satisfied that she could avoid that risk of harm by relocating to other places within Indonesia, such as Jakarta where she had lived safely before.  It was on that 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.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.  Accordingly, the application for leave to apply for judicial review is refused.

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