|
HCAL 2997/2018
[2021] HKCFI 2317
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2997 of 2018
BETWEEN
|
Rukayati Bt Kasdi Sodo |
Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
|
and |
|
|
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 was born on 23/6/1984 in Central Java, Indonesia[1]. She married in 2000 and had a daughter. She did not know the whereabouts of her husband, parents and younger sister. She had education for 9 years. She was a domestic worker in Saudi Arabia and Hong Kong from 2006-2015.
2. She came to Hong Kong in 2011 as a domestic helper. She was last permitted to stay until 2/11/2015. She overstayed until she was arrested on 1/12/2016.[2] She lodged the non- refoulement claim in this case in December 2016. [3]
Background [4]
3. Her husband used to be a furniture factory worker. After marriage, he was dismissed from work. She had to work overseas to support the family. While she was abroad, her husband was addicted to alcohol, gambling and drugs. He had relationships with other women [5]. He borrowed money from banks and loan sharks. He used the matrimonial home as a security.
4. In mid-2010, she went back home from Saudi Arabia for holiday and quarreled with her husband over his debts. He slashed her with a sickle. She was hospitalized for 3 days. She needed suturing of the wounds. It took a month to recover. Her husband threatened to kill her. She dared not report.
5. She left her husband behind and stayed in the employment agency training center in Jakarta for 6 months. She then came to Hong Kong for work in 2011. She changed her phone number to stop her husband from asking for money.
6. One day in 2015, her daughter told her on the phone that their home was confiscated by the bank as her husband had outstanding debts. The outstanding loan was 80 million IDR[6] with a monthly interest of 20%.
7. In 2016, she received numerous calls from a bank from Indonesia pressing for repayment of the loan raised by her husband. The total outstanding amount was 450 million IDR.
8. In the meantime, her sister also asked her to pay for the treatment of her mother who suffered from depression. Her sister threatened to kill her with black magic if she did not bring back money. This happened in 2016.
9. She feared that her husband and sister might harm or kill her if she returned to Indonesia.
The Decision of the Director
10. The Director found that there was no substantial ground to believe there was a real risk that she would be harmed or killed by her husband and sister for the following reasons:[7]
(a) There was only one assault by her husband in 2010. He only threatened her on the phone once in 2011. She was safe staying with the employment agency before leaving for Hong Kong in 2011. The ill-treatment did not attain “a minimum level of severity”.
(b) She could effectively avoid her husband in Indonesia. She changed her phone number to cut off the contact with him. All these suggested that the risk of harm from her husband was not real or imminent. Six years had elapsed since 2011, her husband had not done anything to cause harm. This also indicated that her husband had no intention to kill her.
(c) She had not signed any loan document nor was she a guarantor for the loan. There was no obligation for her to repay for her husband.
(d) Her sister never harmed her. While her sister threatened to use black magic, there was nothing to substantiate this assertion. In fact, she had not contacted her sister since 2016. Her sister had not repeated any threat. It was her speculation that her sister would harm her even after all these years.
(e) It was a private dispute. There was no official involvement. She chose not to report to the police.
(f) The Director had considered various COI. There was widespread corruption in Indonesia. Violence against women was common. However, there were practical measures to improve the situation. The Indonesian government had adopted measures to tackle corruption. The ‘KPK’[8] carried out investigations and prosecutions in high profile cases. There were NGO and new legislations passed to tackle domestic violence. Organizations included the PEKKA, P2TPA[9], the National Commission on Violence against Women and National Commission of Human Rights were in place. The Ombudsman Commission investigated misadministration of justice. There were ongoing police reform programs. The Director concluded that there was reasonable State protection.
(g) Internal relocation was permissible under Indonesian Law. Indonesia was a large and populated country. It would be very difficult for her husband and sister to locate her. NGO such as Rifka Annisa or Women’s Friend were there to support women in need. In fact, Jakarta and Surabaya would be possible options for relocation. Given her background, it was not unduly harsh for her to relocate.
11. The Director dismissed her claim on all grounds on 20/3/2018.
The Decision of TCAB
12. The applicant attended the hearing fixed on 5/7/2018. The adjudicator rejected the claims on 3/12/2018.
13. The adjudicator found that the applicant was totally incredible and rejected her evidence. The adjudicator pointed out the following important aspects:[10]
(a) During the hearing before the TCAB, the applicant said her sister demanded her to pay for the medical expenses of her mother in 2014. Her sister threatened to kill her. As both of them had the responsibility to pay for the medical expenses of their mother, it was unusual that her sister would threaten to kill her to that end. The applicant could not explain satisfactorily.
(b) The applicant had been sending her earnings back to her husband including the medical expenses for her mother. It was surprising that her sister had not even clarified with her husband before threatening to kill her.
(c) During the hearing before the TCAB, the applicant said there was a loan shark coming to her home and threatened her. The loan shark even vandalized her home. She was shown a loan document which recorded a loan of 60 million IDR. The loan shark also threatened to take her house and put her husband in jail. This occurred about 2 weeks before she left for Hong Kong in 2011. Nothing of that sort was mentioned in her NCF. The applicant explained that her lawyer did not ask her. The adjudicator found this unconvincing.
(d) During the hearing before the TCAB, the applicant mentioned that a bank staff called her from Indonesia. The staff told her to send the repayment directly to the bank. Her husband was always in default. The outstanding sum was 360 million IDR. Despite this conversation, the applicant continued to repay through her husband as she still trusted him. The adjudicator found this trust nonsensical given her husband’s violence, threat and persistent default in repayment.
14. The adjudicator rejected her appeal on all grounds on 3/12/2018.
Judicial Review
15. The applicant applied for leave for judicial review of the TCAB decision on 28/12/2018. She had not specified any error in the TCAB decision.
16. It is the duty of the TCAB to assess credibility and establish the facts. In general, this court would not interfere. I have considered the evidence of the applicant. I agree with the adjudicator that she was not credible.
17. In my view, there is no error of law and procedure. Given the evidence, I find the decision of the TCAB reasonable.
Conclusion
18. In my judgment, this case is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 10th day of August 2021.
| |
(Mike Mak) |
| |
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: |
|
|
|
|
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)). |
|
Sent to the Applicant
on 10 August 2021
Rukayati Bt Kasdi Sodo
Applicant’s ref. no:
Nil. |
|
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 10 August 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10961/18/3/413/I1217
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 655/18
(Formerly RBCZ/10141/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Purwodadi, Grobogan.
[2] She was sentenced to imprisonment for 18 days suspended for 12 months for breach of condition of stay.
[3] There were 3 written submissions dated 12, 13, 15/12/2016
[4] Decision of the Director dated 20/3/2018, §§8—9.
[5] According to her mother.
[6] Indonesian Rupiah.
[7] Decision of the Director dated 20/3/2018, §§13—15.
[8] Corruption Eradication Commission
[9] PEKKA=The female headed household empowerment program; P2TPA=Integrated service centres for women and children.
[10] Decision of the TCAB dated 3/12/2018, §§26—37.
|