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HCAL 95/2021
[2021] HKCFI 1121
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 95 of 2021
BETWEEN
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Sri Suyati |
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:
1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant came to Hong Kong under a 2-year-contract as a domestic helper on 28/2/2014. Her contract was terminated on 15/7/2014. She overstayed until 3/8/2015 when she was arrested[1]. She raised the non-refoulement claim in this case on 12/8/2015. She was again arrested on 26/11/2015 for illegal employment.[2]
2. She feared that she might be forced by a loan shark to repay the loan of her ex-husband. Her ex-husband might force her to marry him again so that she would repay the loan.
3. Her non-refoulement claim was rejected by the Director on 29/1/2016 and 3/5/2018. Her appeal to the TCAB was rejected on 14/9/2018. She filed the leave application on 27/1/2021.
Background [3]
4. The applicant was born on 12/4/1986. She was from Desa Tumpa Oyot, Jawar Timur, Indonesia. She had education for 6 years. She had been employed as a domestic helper in Hong Kong (2007-2014).
5. In 2000, she got married at the age of 14. She lived at the house she inherited from her grandfather with her parents and ex-husband. Her ex-husband frequently got drunk and abused her. She however tolerated the unpleasant relationship. In 2007, she left Indonesia to work in Hong Kong. Her ex-husband moved out of the house.
6. In early 2009, she completed the court proceedings for divorce in Indonesia. Since then, she had no contact with her ex-husband.
7. Sometime after the divorce, a loan shark came to her house. The loan shark claimed that her ex-husband had borrowed IDR 50 million [4] from him in 2001. Her house was used as collateral. The loan shark demanded a monthly payment of IDR 1.5 million [5] for 5 years including principal and interest. If she failed to pay, her house would be confiscated. She was shown the loan agreement. She told the loan shark that she would look for her ex-husband to settle the loan.
8. She believed her ex-husband could borrow a loan using her house as collateral. However, she had not signed any agreement to that effect.
9. When she worked in Hong Kong, the loan shark visited her parents and pressed for payment. She had returned to Indonesia for holiday in 2010. There was no problem with the Immigration in Indonesia.
10. In mid-2013, her ex-husband contacted her parents proposing to marry her again so that she could repay his loan. She refused.
11. According to her parents, the loan shark and her ex-husband frequently came to her house. The loan shark threatened to confiscate the house. Her ex-husband put pressure on her parents and insisted to marry her again.
12. She was still the legal owner of the house. She was afraid that the loan shark might take over her house. She was in fear of meeting her ex-husband. She did not return to Indonesia albeit her contract was terminated. Her parents did not suffer any physical violence from the loan shark or her ex-husband.
13. She could not relocate as she had no money. She had no trust in the authorities as they were corrupt. She did not report as she could not afford a bribe. She had no knowledge of any NGO which assisted abused women.
Decision of the Director of Immigration [6]
14. The Director of Immigration concluded that the risk of harm from her ex-husband and the loan shark was low. The reasons were:
(a) There was no ill-treatment by the loan shark. The evidence showed that the loan shark had never threatened her. He just pressed for repayment. There was no intention to harm or kill her.
(b) Her ex-husband had not used violence after the divorce. It seemed that he agreed to repay the loan himself. Although he proposed repeatedly to her parents to marry the applicant again, neither her parents nor the applicant had agreed. There was no violence whatsoever.
(c) Her ex-husband had never intended to harm her seriously despite they lived together for a few years. She had been working in Singapore and Hong Kong for several years. They actually lived apart. There was no ill-treatment amounted to ‘a minimum level of severity’.
(d) The applicant had returned home on holiday in 2010. Nothing happened. This showed that the risk of harm was not imminent and she was not in genuine fear.
(e) She had not signed any document to use her house as collateral. Indeed, she was the owner of the house. The loan shark could not confiscate her house. Had the loan shark wanted to take the house by force, he would not have waited for so many years.
(f) There was no evidence that any public officials were involved in the loan dispute. The loan shark did not act in any official capacity. He was not acting under the encouragement of any official. She was not targeted by the government.
(g) The marital problem with her ex-husband was a private matter. There was no evidence of State involvement.
(h) She and her parents had not reported to the police or any other authorities about the conduct of the loan shark and her ex-husband. It was not the case that the authorities refused or unable to assist had they learned about her situation.
(i) The Director accepted that there were serious problems in corruption and abuse of power with the police. The government was grossly inefficient. Domestic violence against women was a common problem. Access to court was limited. On the other hand, there were reports that the Indonesian government had put serious effort to tackle those problems. The Corruption Eradication Commission (‘KPK’) carried out investigations and prosecutions in high profile cases. There were National Ombudsman offices and NGO established to tackle the abuse of human rights. The National Commission of Violence against Women was established. Special police units were established to handle these cases. There were various services and network available to assist victims of domestic violence. The Director concluded that there was reasonable State protection.
(j) Internal relocation was permissible in Indonesia. Indonesia was 1.8 million square kilometers in area with a population of about 255 million. It would be very difficult for the loan shark and her ex-husband to locate her. In fact, Jakarta would be a possible option 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.
16. The Director further invited the applicant to submit evidence in relation to BOR 2 before 18/4/2018. The applicant did not provide any additional information except reiterating her original basis of the claim. The Director considered the claim on the existing information. For similar reasons, the Director rejected the claim on BOR 2.[7]
Decision of the Torture Claims Appeal Board
17. The Adjudicator fixed an oral hearing on 19/7/2018. The applicant did not attend the hearing. There was no explanation despite a notice was sent to the applicant [8]. The adjudicator proceeded to deal with the appeal on paper. He found that there was no real risk of harm based on the following findings:[9]
(a) She did not seek protection until she was arrested by the police in August 2015. In fact, she had been threatened by the loan shark in 2009.
(b) There was no documentary proof that the applicant was married to her ex-husband especially at a young age of 14. There was no document of the divorce. From the evidence, it seemed the marriage would not bring any benefit, financial or otherwise, to the applicant and her parents. Without any elaboration from the applicant, the adjudicator did not accept she was married.
(c) The applicant did not submit any documentary proof of the loan. She only met the loan shark in 2009 when the latter came to her house to pursue the loan. The adjudicator had grave doubt as to the existence of a loan.
(d) The applicant asserted that she had inherited the house from her grandfather. However, according to the civil code of inheritance in Indonesia, her father and elder sister should have a share of the house. There was no explanation as the applicant was absent. The adjudicator doubted that the applicant had inherited the house.[10]
(e) The loan shark only demanded payment from the applicant. There was no violence to her nor her parents. She returned to Indonesia in 2010 for about 7 weeks, the loan shark did not contact her at all.
(f) The adjudicator found that there was no evidence to support the assertion of domestic violence. They were living with her parents who would not turn a blind eye to the violence if any. In any event, the applicant had worked in Singapore, Hong Kong and a factory in Jakarta. They had been living apart for several years.
18. The adjudicator found that there was no reliable evidence that the applicant faced a real risk of harm warranting non-refoulement protection.
19. Given that there was no real risk of ill-treatment, torture or persecution, the adjudicator rejected the appeal of her claim on 14/9/2018.
Judicial Review
20. The applicant filed the leave application for judicial review on 27/1/2021. She was out of time for over 25 months. She did not apply for an extension of time to file the leave application. In the affidavit in support of the application, she did not specify any error in the decision of the TCAB.
Out of Time Leave Application
21. The applicant did not apply for leave within 3 months of the TCAB decision as required under the law. She did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have considered the length of the delay, the reason for the delay and the merits of the leave application. [11]
22. The applicant did not explain her absence from the TCAB hearing despite prompt notice. It was correct for the adjudicator to deal with the appeal on paper.
23. I agree with the decision of the TCAB. The basis of the claim is not credible even on paper. There is no merit in the intended judicial review. In my judgment, there is no error of law and procedure. The decision of the TCAB is reasonable.
Conclusion
24. In my judgment, there is no good reason for an extension of time for the leave application. The leave application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 27th 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 27 April 2021
Sri Suyati
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 27 April 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3117/16/2/83/I261
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2003/15 &
RBCZ 9000970/16
(formerly RBCZ/12880/15)
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] She was sentenced to imprisonment for 15 months.
[3] Decision of the Director dated 29/1/2016, §§6.1—6.45.
[4] 50 million Indonesian Rupiahs were equivalent to about HKD $30,000.
[5] 1.5 million Indonesian Rupiahs were equivalent to about HKD $882.
[6] Decision of the Director dated 29/1/2016, §§13—32.
[7] Decision of the Director dated 3/5/2018.
[8] According to s.15 of Schedule 1A of the Immigration Ordinance.
[9] Decision of the TCAB dated 14/9/2018, §§24—45.
[10] Decision of the TCAB dated 14/9/2018, §§31—34.
[11] [2020] HKCFA 22, para 37.
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