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HCAL 1298/2018
[2021] HKCFI 1021
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
No 1298 of 2018
BETWEEN
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Rustini |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for judicial review be refused.
Observations for the Applicant:
1. The applicant came to Hong Kong under a domestic helper contract on 12/8/2013. She was arrested by the police for breach of condition of stay. She was sentenced to 2 months’ imprisonment. Her contract was terminated on 8/1/2014. She filed the non-refoulement claim in this case on 26/2/2014.[1]
Background [2]
2. The applicant was born on 27/6/1978 in Buduan Village, East Java, Indonesia. Her parents and other siblings were in Indonesia. She had education for 6 years. She assisted her mother in a cooked food shop.
3. She was arranged to marry her husband in 2000. She had a step daughter. She gave birth to her son on 7/10/2001. It turned out after the marriage that her husband was bad-tempered. He was an odd job worker.
4. Since marriage, her husband had often assaulted her. She was forced to borrow money for him. She did not report the assaults as they were family matters.
5. There was a serious quarrel in 2003 about family expenses. Her husband grabbed her neck and attempted to strangle her. She fought back. She had neck pain and bruises. She applied ointment and recovered in 2 weeks. A neighbor came to help but was assaulted by her husband too.
6. The neighbour reported to the police. Her husband was arrested but released after detention for 2 days. It transpired that her husband bribed the police for 500,000 Rupiahs. No charge was laid against him.
7. After this incident, despite an apology from her husband, the domestic violence continued.
8. Around July 2005, her husband assaulted her for having stayed overnight at her parents’ place. She had bruises on her body. She only applied ointment and recovered in 2 weeks. She did not report to the police as it was a family matter.
9. A few days later, she left her son with her parents. She left home to have training with an employment agent at Malang for 3 months. She was safe as her husband did not know her whereabouts. She eventually came to Hong Kong in October 2005.
10. While in Hong Kong, her mother told her that a loan shark came to their home asking about her. That loan shark alleged that her husband had borrowed money on her behalf. Since then, she remitted 500,000 Rupiahs to her husband every month.
11. She returned to Indonesia in August 2010 and stayed with her parents for 2 months. She returned to Hong Kong in October 2010. She continued remitting money to her husband.
12. In August 2013, she returned to her parents to celebrate the Muslim New Year. However, her husband discovered. He came to her parents’ house and assaulted her during a quarrel.
13. Two days before she was due to leave for Hong Kong again, her husband told her that he had borrowed 25,000,000 Rupiahs from the loan shark. Her parents’ land and house were used as securities. He threatened to kill her if she did not repay for him. At the end, she gave 1 million Rupiahs to calm her husband and promised to repay his debt. She dared not report for fear of harm to her parents.
14. She finally left Indonesia for Hong Kong on 12/8/2013. She could not afford remitting money back to her husband as she had to pay the agent fees. Her step daughter told her that her husband had incurred huge debts. The loan shark had been looking for her for repayment.
15. She feared that her husband would kill her if she returned to Indonesia. She had no confidence in the police who were corrupt.
16. She did not mention her step daughter in the NCF as that daughter was not her natural child. She did not lodge any claim in 2005 as she did not know there was such a scheme. Her husband and the loan shark had not harmed her parents. She could not relocate as she had no experience. [3]
The decision of the Director
17. The Director found that there was no reasonable likelihood that the risk of harm from her husband was real and foreseeable for the following reasons:
(a) Although there were several assaults by her husband since marriage, her injuries did not reach ‘a minimum level of severity’. She only applied ointment and recovered in 1-2 weeks.
(b) There were many chances that her husband could have killed her had he wanted to do so. This indicated that her husband did not intend to kill her.
(c) Despite the repeated assaults, she chose to stay with her husband. This showed that she did not perceive an imminent risk of harm.
(d) She did not seek police assistance in Indonesia. There was no evidence that the police would not investigate.
(e) The Director accepted that there was widespread corruption in Indonesia, there were serious problems of domestic violence. The judiciary was influenced by politicians and business sectors. The Indonesian government had adopted measures to tackle corruption. The Corruption Eradication Commission (‘KPK’) carried out investigations and prosecutions in high profile cases. There were anti-corruption courts established. The Ombudsman Commission and the National Commission on human Rights investigated human rights abuses with the cooperation of the police. There were measures to improve the performance of the police. There were organizations which assisted in the protection of women and children in Indonesia. The Director found there was sufficient State protection.
(f) Indonesia was a large country with big population. Relocation was permitted by law. The applicant might move to other cities like Jakarta. The Director concluded that it was not unduly harsh for the applicant to relocate and avoid the threats from her husband and the loan shark.
18. The Director dismissed the non-refoulement claim on BOR 3, persecution and torture risk grounds on 8/5/2015.
19. The Director further dismissed the claim on BOR 2 ground on 6/4/2017 as the applicant did not submit additional facts.
Decision of the TCAB
20. The applicant attended the hearing fixed on 3/8/2016. The applicant confirmed that the information in the appeal bundle was correct. The content of the NCF and record of interview before the Director was true.[4] There was an interpreter. The adjudicator came to the following findings:[5]
Persecution risk
(a) The applicant had been attacked by her husband causing bruises and swelling. There was no need for hospital treatment. The dispute was a private matter. There was no official involvement. The attack was not for any Convention reason.
(b) The adjudicator had considered the COI. While there were problems of corruption and police inefficiency, there were recent strategies and programs to improve the situation. There was no serious violation of human rights.
(c) The applicant failed to establish a well-founded fear of persecution. This ground failed.
BOR 3
(d) The applicant was assaulted by her husband. The injuries were not serious and did not amount to a minimum level of severity.
(e) Despite the persistent domestic violence for several years, the applicant had not sought any assistance from the police.
(f) This ground failed.
Torture risk
(g) The injuries were relatively minor. There was no state actor involved. The applicant was not targeted by the government.
21. The adjudicator pointed out that Indonesia was a large country. The population was about 253 million. Jakarta might be a viable option for relocation. She had about 10 years’ experience as a domestic helper. It was not unreasonable for her to relocate.
22. The adjudicator dismissed the appeal on the above grounds on 23/2/2017.
23. On similar reasoning, the adjudicator rejected her appeal on BOR 2 ground on 29/6/2018. There was no severe physical or mental suffering. The applicant was not targeted by the government.
Judicial review
24. The applicant applied for leave for judicial review on 6/7/2018. She only sought to review the TCAB decision made on 29/6/2018 which ruled on BOR 2 only. She had not sought to apply leave to review the TCAB decision dated 23/2/2017 which ruled on other grounds.
25. However, in her affirmation in support of the leave application she attached the Director’s decision dated 8/5/2015 which concerned the assessment on other grounds. She should have attached the Director’s decision dated 6/4/2017 which concerned the assessment on the BOR 2 ground.
26. Despite the seemingly procedural error of the applicant, I would deal with both TCAB decisions in this leave application as the factual bases are identical. The applicant might have mistaken that the TCAB decision dated 29/6/2018 was the final disposal of her claim on all grounds.[6]
27. On 30/10/2020, the applicant filed a written submission to this court. The major complaints included that the TCAB was in breach of procedural fairness. The decision of the TCAB was irrational. The appeal bundle was in English. She could not afford interpretation services. She did not understand the hearing before the TCAB. The COI relied on by the TCAB were outdated. They consisted of hearsay.
28. An oral hearing was held on 26/1/2021 upon the request of the applicant. She had nothing further to update. She had no complaint against the TCAB. She was not ready to go home. She reiterated that her husband told her to repay. She had not signed any IOU. She had no money to repay. Her husband could not locate her.
29. In my view, the relevant decision of the Director (6/4/2017) had been sent to her most updated address. The earlier decision of the Director (8/5/2015) was sent to the DLS. The latter must have been translated to her as a matter of practice. The former added very little to the latter decision. The applicant must have a reasonable understanding of the bases of the Director’s decisions.
30. The NCF in the appeal bundle was compiled with the assistance of the DLS. The applicant had confirmed its accuracy on 21/3/2015.[7] As to the record of the interview before the Director, the interview was conducted with the assistance of an interpreter. The applicant should have no difficulty in understanding the content of all these documents in the appeal bundle. The written submission dated 30/10/2020 was written in English. This shows that the applicant could have language assistance from other sources. In my view, there is no unfairness because of language.
31. As for the COI, the adjudicator must have considered the COI set out in the appendix of the Director’s decision. They are the most updated at the time of assessment. They were from reliable sources. The applicant could have counterchecked if there was any query. General criticism of those COI could not assist the applicant.
32. During the hearing before the TCAB, the applicant was assisted by an interpreter. There was no complaint recorded. In fact, she indicated that she had answered questions honestly. During the hearing before this court, the applicant had no complaint against the TCAB.
33. In relation to the leave application concerning the TCAB decision dated 29/6/2018, there is no error of law and procedure. I agree with the adjudicator. I find the decision reasonable.
34. For the sake of completeness, I also find no error of law and procedure in relation to the TCAB decision dated 23/2/2017. The decision is reasonable. I agree with the findings.
Conclusion
35. In my judgment, the leave application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for the judicial review.
Dated the 19th day of April 2021.
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(Mike MAK) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 19 April 2021
Rustini
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19 April 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1551/15/5/83/I79; and
BOR 424/17/4/73/I27;
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 277/15 &
RBCZ 9000870/17
(formerly RBCZ 1482/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director dated 8/5/2015 §§7.
[2] Decision of the Director dated 8/5/2015 §§6.1—6.32.
[3] Decision of the Director dated 8/5/2015 §§6.33—6.39, evidence given during the interview before Director.
[4] The decision of the TCAB dated 23/2/2017, §§ 12 and 47.
[5] The decision of the TCAB dated 23/2/2017, §§ 53—58.
[6] The Director invited additional information by a letter dated 10/3/2017 which was about 2 weeks after the TCAB decision on other grounds. In fact, the Director indicated that all applicable grounds would be considered based on the additional information. See the decision of the Director dated 6/4/2017, §1.
[7] The affirmation in support of the leave application dated 6/7/2018, exhibit 2, page 46.
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