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HCAL 2916/2018
[2021] HKCFI 880
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2916 of 2018
BETWEEN
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Sri Indrawati |
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 as a domestic helper on 26/11/2012. Her contract was terminated on 6/12/2012. She overstayed until 7/6/2014 when she was arrested[1]. She raised the non-refoulement claim of this case on 18/6/2014.
2. She feared that she might be harmed or killed by a loan shark and her ex-husband if she returned to Indonesia. Her ex-husband demanded her to repay his loan.
3. Her non-refoulement claim was rejected by the Director on 20/4/2016 and 23/6/2017. Her appeal to the TCAB was rejected on 6/11/2018. She filed the leave application on 19/12/2018.
Background [2]
4. The applicant was born on 5/1/1983. She was from Blitar, East Java, Indonesia. She was divorced. She was a Muslim. She had education for 12 years. She had been employed as a domestic helper intermittently in Hong Kong (2005-2012).
5. In 2006, she got married. Her ex-husband frequently abused her physically. There was no severe injury. She did not report to the police as this was a private matter. She left Indonesia again to work in Hong Kong around May 2006.
6. In early 2010, her ex-husband borrowed a large sum[3] from a loan shark to start a garage business. They signed the loan agreement jointly. She had little knowledge about the terms. Around April 2010, the garage business failed. Her ex-husband could not repay the loan.
7. From then onwards, there were persistent calls from the loan shark threatening them. Her ex-husband was more and more violent due to the pressure. There was one incident when she was 7 months pregnant, he threw a knife at her but missed. She gave birth to her son in May 2010. She was under great physical and mental torture. She sought treatment from the community clinic.
8. Around September 2010, she came to Hong Kong as a domestic helper. His ex-husband called her nearly every day. The loan shark also called several times a month. The threats included harming her and seizing her properties in Indonesia.
9. In August 2011, she returned to Indonesia. She dared not return to her ex-husband. She stayed with her sister in Jakarta for about 3 months. She was safe as no one knew about her return. She returned to her father’s house at Blitar and stayed until November 2012. During this year, she was safe. Her ex-husband or the loan shark did not find her.
10. In November 2012, she returned to Hong Kong under another domestic helper contract. That contract was terminated in December 2012. She overstayed in Hong Kong. She did not apply for non-refoulement as she was confused and did not know what to do.
11. While she was in Hong Kong, her mother-in-law told her that her ex-husband had divorced her and re-married in 2014. He found out her phone number from her friends and threatened her to remit money to him. He also led the loan shark to seize her father’s properties.
12. She did not seek assistance from the Indonesian Police as they were corrupt and favoured the powerful and the rich. In fact, they would ignore the loan dispute as it was a private matter. She however had never encountered the police in Indonesia. She accepted there were NGO which might be of assistance but she had no confidence about the protection offered.
13. She could not relocate as she had no support from friends. She thought her ex-husband was able to look for her in Blitar and Jakarta.
Decision of the Director of Immigration [4]
14. The Director of Immigration concluded that there was low risk of harm from her ex-husband and the loan shark. The reasons were:
(a) The loan dispute was a private matter. There was no evidence that the loan shark had any connection with any public official. Similarly, the marital relationship with her ex-husband was also a personal matter arising from his drinking and financial problems.
(b) The loan shark had never inflicted physical harm on her. Had they wanted to harm her, there were plenty of chances in Indonesia. This showed that there was no intention to cause serious harm.
(c) Her ex-husband had divorced her and re-married in 2014. There was no further risk of domestic violence from him. Though she claimed to have intense fear of her ex-husband in the past, she chose to stay with him and never needed any treatment for mental suffering. As to the incident in which he threw a knife at her, she accepted his apology and returned home. In the circumstances, there was no ill-treatment amounted to ‘a minimum level of severity’.
(d) The applicant had never sought help from the police in Indonesia. There was no evidence that the police would knowingly neglect to assist her.
(e) She had only raised the claim in June 2014, about 18 months after she was terminated. The delay was contradictory to her fear of the threat from her ex-husband and the loan shark. Her credibility was in great doubt.
(f) The Director had considered various COI. It was accepted that there were serious problems in corruption and abuse of power with the police. Domestic violence against women was a common problem. On the other hand, there were also reports that the Indonesian government had put measures to tackle corruption. The Corruption Eradication Commission (‘KPK’) carried out investigations and prosecutions in high profile cases. There were anti-corruption courts established. There were integrated service centers providing counselling and support to victims of domestic violence. Female police officers were stationed to handle these cases. More victims were encouraged to speak out. The Director concluded that there was reasonable State protection.
(g) Internal relocation was permissible under Indonesian Law. Indonesia was 1.9 million square kilometers in area with a population of 255 million. It would be very difficult for the loan shark and her ex-husband to locate her. In fact, Jakarta, Blitar and Surabaya would be possible options for relocation. Given her background, it was not unduly harsh for her to relocate.
15. The Director dismissed her claim based on BOR 3, persecution and torture risk.[5]
16. The Director further invited the applicant to submit evidence in relation to BOR 2 before 20/6/2017. The applicant did not respond. The Director considered the claim on the existing information. For similar reasons, the Director rejected the claim based on BOR 2.[6]
Decision of the Torture Claims Appeal Board
17. The Adjudicator fixed an oral hearing on 10/8/2018. The applicant had elected to give evidence. The adjudicator found that there was no real risk of harm based on the following findings:
(a) She could not recall the amount of the loan. She did not know the rate of interest and the mode of repayment. She was unable to provide a copy albeit her ex-husband had one. The adjudicator found this lack of information undermined the veracity of her claim. [7]
(b) At the time the loan was raised for the garage business, she was in Indonesia. There was no corroborative evidence whatsoever to support that a garage was opened. Nor was there any evidence that her ex-husband went bankrupt.
(c) The applicant alleged that the loan shark had taken the house and land from her father. The applicant was vague as to how the loan shark could obtain the title documents. She was unable to explain the necessary actions taken to convert the title of the properties to the loan shark.
(d) The applicant delayed for about 1½ years before filing the non-refoulement claim in this case. She only did so after her arrest for overstaying. This discredited her fear of serious harm if she returned to Indonesia.
(e) The adjudicator found that the risk of harm by the loan shark and her ex-husband was very remote if she returned to Indonesia:
i. The ex-husband remained living at his home without any harm from the loan shark. There was no evidence that the loan shark had ever harassed him and his family.
ii. The applicant was safe at other places of Indonesia which was a large country with huge population. The chance that the loan shark or her husband could locate her was extremely remote.
iii. Her ex-husband had divorced the applicant and re-married in 2014. She had not lived with him since 2010. Even when she returned to Indonesia in August 2011, she did not contact him. She last contacted him in February 2016. She could live at other places in Indonesia. The chance of harm by her ex-husband was very remote.
iv. There were integrated service centers for victims of domestic violence. The COI revealed that she should be able to seek assistance form NGO for protection. The government had introduced a range of social welfare safety programs to assist poor families in 2015—2017.
18. The adjudicator was satisfied that the applicant did not face a real chance of harm from the loan shark and her ex-husband if she returned to Indonesia.
19. Given that there was no real risk of ill-treatment, torture or persecution, the adjudicator rejected the appeal of her claim.[8]
Judicial Review
20. The applicant filed the leave application for judicial review on 19/12/2018. In the affirmation in support of the application, she did not specify any error in the decision of the TCAB.
21. In the decision of the TCAB, the adjudicator noted that the applicant had a husband and a son in Hong Kong.[9] Her husband was a Nepalese and not a permanent resident in Hong Kong. The adjudicator had considered the difficulties arising from this relationship if the applicant was refouled. The adjudicator considered the nationality law which might be of assistance to the applicant.
22. In my view, her Nepalese husband and her son are not subjects of assessment by the Director. There is no information that they may have filed any separate claim. They are not parties to the leave application. There is no need for the adjudicator to consider their claims, if any, at this stage. I do not think those comments in relation to the nationality of the husband and the son is relevant. It should not have any bearing on the non-refoulement claim of the applicant.
23. In any event, I have considered the decision of the TCAB in this judicial review. I agree with the reasons therein. There is no error of law and procedure. The decision is reasonable.
Conclusion
24. In my judgment, the leave application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 7th 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 7 April 2021
Sri Indrawati
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 7 April 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3567/16/4/175/I316
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4/16 &
RBCZ 9002197/17
(formerly RBCZ/2204/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She was sentenced to imprisonment for 6 weeks suspended for 3 years.
[2] Decision of the Director dated 20/4/2016, §§6—7.
[3] She only recalled the approximate amount (600 million rupiah) during the oral hearing before the TCAB, Decision of TCAB dated 6/11/2018, §38.
[4] Decision of the Director dated 20/4/2016, §§17—27.
[5] Decision of the Director dated 20/4/2016, §§28—39.
[6] Decision of the Director dated 23/6/2017.
[7] Decision of the TCAB dated 6/11/2018, §55.
[8] Decision of the TCAB dated 6/11/2018, §78—89.
[9] Decision of the TCAB dated 6/11/2018, §§72—73.
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