NOVA LIYASANTI v. ORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1635/2019

[2022] HKCFI 591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1635 of 2019

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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant first came to Hong Kong in August 2006 as a domestic helper. Her contract was terminated early on 7/8/2008. She was permitted to stay until 4/9/2008.[1] She overstayed until 18/11/2009 until she was arrested.[2]  She filed a torture claim on 27/11/2009. It was rejected by the Director on 2/2/2012. She lodged the non-refoulement claim in this case on 31/7/2017.

Background

2.  The applicant was born on 28/11/1982 in West Java, Indonesia.  She had education for 12 years.  She was a domestic helper in Singapore for about 2 years.  She worked in Hong Kong as a domestic helper from 2004 to 2008. She was single. Her parents had passed away.

3.  Since 1991, her father was constantly sick due to hypertension and some liver conditions. Her family had to borrow from the creditor. The debt accumulated to about 250 million INR[3] in 1992. Her father could not repay. She knew very little about the creditor. She was told that he was a member of the legislative assembly and a leader of an Islamic group.

4.  In 1996, she went to the creditor’s house to ask for a loan of 80 million INR. She was raped by the creditor. She sustained scratches all over her body. She was only 14 at that time. She was forced to sign a note for the loan. The rice field of her family was used as collateral. She was so traumatized that she developed sleep problems and stress symptoms. She was afraid of the creditor. She went to stay with her uncle, who lived far away at Serang, for a few months. During this time, her mother borrowed another 12 million INR to pay her father’s medical expenses.

5.  In 1999, the creditor demanded for repayment. Her parents gave up the title deed of the rice field and also agreed to let him marry her for settling the loan.

6.  In 2000, she was assaulted by the creditor when she refused to marry him. She had injuries at her head which took a week to recover. A few days later, the creditor came again putting pressure on her. He asserted that he had video footage of the rape in 1996. She refused.

7.  A few days later, the creditor came again. He assaulted her and forced her to sign a note agreeing to be responsible for all the debt owed to him by her family. She wounded her head which took a week to recover.

8.  In 2001, she moved to live with her uncle at Serang. She attended a boarding school for training domestic helpers before leaving for Singapore under an employment contract. She was in distress due to the fear of the creditor. Her contract was terminated in 2004. She returned to her uncle’s home at Serang.

9.  In 2004, she was abducted by the creditor from her uncle’s house.[4] She was detained in a house guarded by 5 men. She managed to escape through the roof during the night time. She returned to the boarding school with the help of a truck driver. She stayed safely there for 3 months until she left for Hong Kong. She had to consult a doctor for emotional distress before departure.

10.  She returned to Indonesia briefly in 2006 and stayed in the training center. She departed for Hong Kong in August 2006. She could not focus at work. She fainted once and had to consult a doctor in Hong Kong.

11.  Her mother told her that the creditor still asked about her. The creditor threatened to kill her. She had since lost contact with all her family and friends in Indonesia. She overstayed in Hong Kong until she was arrested. She had not sought assistance from any NGO in Hong Kong.

12.  She estimated that the debt was about 262 million INR. She knew nothing about the interest of the debt. She did not know how much her family had borrowed during the years when she was not in Indonesia. She had not used any earnings in Singapore and Hong Kong for repayment.

13.  She was under mental stress and had to seek treatment from Castle Peak Hospital in Hong Kong. She had sleep problem and could not eat well. She had to take sleeping pills and anti-depressant. She was anxious that she would be located by the creditor if she returned to Indonesia.

14.  She did not report to the police in Indonesia. The creditor had connections with the police. They would not protect her. The police were corrupt. She did not think the Corruption Eradication Commission would assist. She had no resources to relocate. She could not earn a living elsewhere. The creditor would be able to locate her.

15.  She submitted documents to support that she had consulted psychiatric outpatient clinic in Hong Kong since 2015.

The Decision of the Director

16.  The Director found that there was no substantial ground to believe that she would be at risk of being harmed or killed by the creditor for the following reasons:

(a)  The applicant’s family had started to borrow from the creditor from 1991. There were alleged rape in 1996 and the marriage proposal was in 1999. From 1999—2000, the creditor had not taken any action to force her to marry him. There was no action to harm or kill her.

(b)  There was no evidence that the creditor had located her when she stayed at the training center in 2002, 2004 and 2006. She was safe during those periods.

(c)  She knew very little about the creditor. Most of the information was from others. There was no evidence that the creditor had the resources and power to locate her throughout Indonesia.

(d)  She claimed that she was mentally disturbed due to the fear of the creditor. However, she was able to undergo training and worked in Singapore and Hong Kong. According to one of the documents submitted, she first consulted psychiatric clinic in Hong Kong in 2015. It was about 10 years after the alleged ill-treatment by the creditor from 1996 to 2004.

(e)  There was no evidence that her family had tried to repay the debt. She could not recall if she repaid the debt with her earnings from Singapore and Hong Kong.

(f)  She delayed until November 2009 before filing a torture claim. She did not seek protection in 2008 when her contract was terminated. This was inconsistent with a genuine fear of her life.

(g)  There was no evidence that any official was involved.  It was a private dispute. She had not reported to the police about the rape and other incidents. There was no issue of acquiescence or failure to investigate. She was not targeted by the authorities. She could exit and enter Indonesia without any problem.

(h)  The Director accepted that there was corruption, inefficiency and infringement of human rights by the police.  However, there were practical measures by the government to improve police effectiveness.  The Corruption Eradication Commission (‘KPK’) carried out investigations and prosecutions at all levels.  There was national health insurance scheme in progress to enhance health care services to citizens. The PEKKA program[5] assisted women in participation in various aspect of social and economic life. There was no evidence that the government was unable to discharge their duties or tolerate unlawful acts.  The Director concluded that there was reasonable State protection.

(i)  The law in Indonesia allowed relocation.  It was a large country with a population of around 260 million.  She might move to other city like Jakarta and Surabaya.  The creditor would not be able to locate her.  There was NGO helping internally displaced people and asylum seekers. The Director concluded that it was not unduly harsh for the applicant to relocate.

(j)  The documents submitted by her could not assist her claim. 

17.  The Director rejected her claim on BOR 2, BOR 3 and persecution risk on 31/1/2018.

The Decision of TCAB

18.  The applicant gave evidence in the hearing fixed on 18 & 27/3/2019. The adjudicator was not satisfied that there was any debt owed to the creditor. There was no threat arising from the creditor. She did not accept the applicant faced any harm which entitled her protection under the USM. She rejected the appeal on 6/6/2019.  The adjudicator made the following findings:

(a)  The applicant clearly demonstrated her ability to recall and discuss her circumstances during the hearing. She gave oral evidence before the TCAB which was inconsistent with her SCF submitted in 2017. Her evidence about the debt and the harassment by the creditor was not credible.

(b)  Initially, she could not explain how she could pledge the family rice field when she was just 14. She subsequently asserted that it was her parents who did so.

(c)  After the rape in 1996, she could not recall other assaults by the creditor in the following 6 years. She failed to mention the two assaults in 2000. She however alleged that the creditor raped her again in 2004 which was not mentioned in the SCF. The adjudicator did not accept that she was nervous while compiling the SCF. The inconsistencies were significant.

(d)  She was inconsistent as to how she escaped from the house to the training center/boarding house. She told the adjudicator that the truck driver gave her money for the bus trip to the training center/boarding house. However, in her SCF, it was the truck driver who asked his friend to drive her to the training center/boarding house. She could not explain the inconsistency.

(e)  The adjudicator was not satisfied that there was sufficient evidence to believe that there was a video clip of the rape in 1996. The applicant was unable to give more evidence on this.

(f)  The adjudicator doubted why the creditor had not taken further action to marry the applicant when she stayed in Indonesia from 1996 to 2002. This was inconsistent with the assertion that the creditor was rich, powerful and determined to marry her.

(g)  Given the totality of doubtful evidence, the adjudicator was not satisfied that her depression or anxiety was related to the alleged rape and threats by the creditor.

(h)  The adjudicator pointed out that the creditor should be about 74 at the time of the TCAB assessment. The applicant had lost contact with him since 2004. It would be entirely speculative that he would still pose a real threat to her.

(i)  The adjudicator pointed out the “Sister Tantri letter” was written in 2011. It did not assist for assessing her current or future risk. The adjudicator also doubted the motive of the author and discounted its value.

Judicial Review

19.  The applicant filed the leave application on 14/6/2019.  In her affirmation, she did not specify any error in the TCAB decision.  She just maintained that she could not return to Indonesia because of her problem.

20.  This court fixed a hearing on 24/1/2022.  The applicant did not attend.  The notice of hearing was sent to her last known address as recorded in the letter dated 29/4/2020.  There was no return mail. 

21.  The adjudicator had analyzed her evidence in detail. She had put the doubtful points to the applicant.  She was given ample opportunities to explain.  The adjudicator was not satisfied with her reasons. There were significant inconsistencies which undermined her credibility. I agree with the findings of the adjudicator.  In my view, there is no error of law and procedure.  I also find that the TCAB decision reasonable.

Conclusion

22.  In my judgment, the leave application is not reasonably arguable. There is no reasonable prospect of success.  I refuse leave for judicial review.

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