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HCAL 1603/2019
[2022] HKCFI 593
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1603 of 2019
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Sri Astuti |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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Director of Immigration |
Putative
Interested Party
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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 9/3/1984 in Lampung Province, Indonesia [1]. She was a Muslim. She was separated with a son. Her family was in Indonesia. She had education for 12 years. She was a domestic helper in Singapore for 1 year (2010). She first worked as a domestic helper in Hong Kong in May 2011. She had never joined any organisation. She was never charged, arrested or detained in Indonesia.
2. She came to Hong Kong on 12/5/2011 as a domestic helper. Her contract was terminated early on 3/1/2012. She left Hong Kong for China and returned on 17/2/2012 with another contract. She was again terminated early on 10/3/2012.
3. She left Hong Kong and returned via Lowu Control Point on 24/3/2012. She was allowed to stay until 23/4/2012. She overstayed until she was arrested on 6/7/2012.[2] She was released on recognizance but failed to report to the Immigration Department. She was arrested on 4/9/2014. She lodged the non-refoulement claim in this case on 8/9/2014.
Background
4. About early 2007, her father borrowed a loan of IDR[3] 30 million from a loan shark to renovate the family house.[4] Her father had to repay a total of 36 million IDR. After 4-5 months, her father was unable to repay.
5. In early 2008, the loan shark came to her father’s house and pressed for repayment. He scolded her father and demanded repayment as soon as possible.
6. In the morning on 26/8/2008, the loan shark came to her father’s house. Her father was not there. The loan shark assaulted her causing bruises at her leg. The loan shark threatened to kill her if she did not repay the loan. She was treated at the village clinic with some medicine. She reported to the police. She overheard the police calling the loan shark that a summons would be issued.
7. A few days later in the evening, the loan shark came to her father’s house and blamed her for reporting to the police. The loan shark slammed the door with a piece of wood and threatened her. The loan shark left after several hours.
8. Later on, the prosecution office approached her to settle the case against the loan shark. She had advice from a lawyer and decided to settle. Despite the settlement, the loan shark continued to harass her family for repayment albeit he did not attack her.
9. She went to Singapore in 2009 and worked until July 2010. She returned to Indonesia and stayed with the agency in Jakarta. She then came to Hong Kong in May 2011 as a domestic helper. During her absence from home, the loan shark continued to press for repayment.
10. The police could not protect her as the loan shark was a driver of the prosecution office. He could influence the police. She could not relocate as she had no relatives elsewhere. She did not know any NGO which could assist her.
11. Her family said the loan shark came to press for repayment from time to time. She was supported by her friends in Hong Kong before she filed the claim on 8/9/2014. She had lost contact with her husband.
12. She feared that the loan shark might harm or kill her if she returned to Indonesia.
The Decision of the Director
13. The Director found that the risk that she would be harmed or killed by the loan shark was low. It was unlikely that the fear would materialize for the following reasons:
(a) Her father borrowed the loan shark in 2007 but only purchased the house in 2008. The family moved in the house in 2010. The sequence of events was inconsistent with the asserted harassment arising from the loan.
(b) She asserted that 30 million IDR was also borrowed from the loan shark to purchase the house. However, according to her evidence, 30 million IDR was borrowed for renovation also. It was unreasonable that the renovation cost was the same as the purchase price. It was unclear whether there were 2 loans and why his father did not sell the old house to settle part of the loan.
(c) Her family was safe even after she left Indonesia in 2009. The loan shark had never attacked her family.
(d) She was attacked and threatened by the loan shark twice. There were some injuries in the first incident but only threat in the second. There was no injury which amount to a minimum level of severity.
(e) The loan shark was only a driver in the prosecution office. It was unreasonable that he could influence the police as she asserted.
(f) It was a private dispute. There was no official involved. She could stay with the agent safely in Jakarta. She could leave Indonesia through official channel. She was not targeted. It was not accepted that the loan shark had the resources to locate her in Indonesia.
(g) The Director had considered various COI. There was widespread corruption and abuse of power in Indonesia. However, the Indonesian government had adopted measures to tackle corruption. The ‘KPK’[5] carried out investigations and prosecutions in high profile cases. There were news reports revealing that police officers were arrested for committing offences. There were NGO in operation to assist victims like the applicant. There were ongoing police reform programs by the United States and other countries. The Director concluded that there was reasonable State protection.
(h) Internal relocation was permissible under Indonesian Law. Indonesia was a large country with 260 million people. It would be very difficult for the loan shark to locate her. The influence was localized. There were NGO offering assistance to displaced persons and returning asylum seekers. In fact, Bali, Jakarta and Surabaya would be possible options for relocation. Given her background, it was not unduly harsh for her to relocate.
14. The Director dismissed her claim on all grounds on 29/8/2018.
The Decision of TCAB
15. The applicant attended the hearing fixed on 6/3/2019. The applicant adopted her evidence contained in the hearing bundle. She also answered questions during the hearing. The adjudicator rejected the claims on 9/5/2019.
16. The adjudicator found that the applicant was not credible. The adjudicator pointed out that the applicant had made up the factual bases on the following important aspects:
(a) If the loan shark was so rich and influential, he did not need to work as a driver in the prosecution office. It was also implausible that he could influence the prosecution and the police. Had the loan shark be so influential, there was no need for him to pursue the debt all by himself.
(b) It was illogical that an officer from the prosecution office had to spend time to persuade the applicant to settle the case concerning the loan shark.
(c) During the hearing before the TCAB, the applicant agreed that she had no evidence to believe that the loan shark was influential. It was just her guess. The adjudicator found this a deliberate exaggeration to boost her claim.
(d) The applicant could not explain to the adjudicator why the loan shark targeted her instead of her father and her brothers. It was unreasonable given that her father was the borrower.
(e) The applicant was evasive and refused to explain why she did not use her earnings in Singapore to repay the loan. She was unable to explain why his father borrowed such a loan to renovate a house whereas his salary was insufficient for food.
(f) She told the adjudicator that she did not know what the police officer told the loan shark on the phone. However, in her NCF, she said the officer told the loan shark about the summons to be issued against him.
(g) She delayed for more than 2 years before filing the non-refoulement claim. The adjudicator rejected her explanation that she was ignorant about the USM. Her delay was inconsistent with the assertion that her life was under imminent danger.
(h) The adjudicator accepted that there was reasonable State protection. It was reasonable for her to relocate given the working experience.
17. The adjudicator rejected her appeal on all grounds on 9/5/2019.
Judicial Review
18. The applicant applied for leave for judicial review of the TCAB decision on 13/6/2019. In her affirmation, she complained that the TCAB failed to consider due diligence under BOR 2. There was insufficient consideration in BOR 3 risk. The adjudicator failed to consider the COI. There was failure to consider her psychological stress due to the threat.
19. The applicant wrote to this court in a letter dated 27/8/2019. She applied to withdraw the leave application as her problem was solved. Deputy High Court Judge Lung refused the application for withdrawal on 12/9/2019.
20. On her request, this court fixed a hearing on 24/1/2022. She was absent. The notice of hearing was sent to her last known address. There was no return of mail. This court dealt with her leave application on paper.
21. The basis that the adjudicator dismissed her appeal was that she was not credible. The adjudicator rejected her evidence that there was a loan raised by her father and that there were threats from the loan shark. Given these findings, there was no need to consider individual risks as the applicant failed to establish the bases of her claim at all.
22. This court has considered the evidence of the applicant. I agree with the adjudicator that she was not a truthful witness. Her delay of more than 2 years before applying for the non-refoulement claim was detrimental to her credibility.
23. It is the duty of the TCAB to assess credibility and establish the facts. In general, this court would not interfere. In my view, there is no error of law and procedure. Given the evidence, I find the decision of the TCAB reasonable.
Conclusion
24. In my judgment, this case is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 28th day of February 2022.
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(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:
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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 28 February 2022
Sri Astuti
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
28 February 2022
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13377/18/9/138/I1452
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2693/18
(Formerly RBCZ/10198/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] JL Cendrawasih Rtoi/Rwoi, Baudar Jaya Barat, Terbanggi Besar Sub-District, Lampung Tengah Regency.
[2] She was sentenced to imprisonment for 2 weeks suspended for 3 years for breach of condition of stay.
[3] Indonesian Rupiah.
[4] In the interview before the Director, she clarified that her father purchased the new house in 2008 for 30 million IDR. The family only moved in until 2010.
[5] Corruption Eradication Commission
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