ERNAWATI SUGITO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE

HCAL 682/2019 & HCAL 1893/2020

[2021] HKCFI 3321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 682 of 2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1893 of 2020

 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 oral submissions by the 1st Applicant in open court;

1.      For HCAL 682/2019,

 i.      Extension of time to apply for leave to apply for Judicial Review for the 1^st Applicant be refused;

 ii.     The 1^st to 2^nd Applicants' application for leave to apply for Judicial Review be dismissed.

2.      For HCAL 1893/2020,

 i.      Extension of time to apply for leave to apply for Judicial Review for the 1^st Applicant be refused;

 ii.      The 1^st to 3^rd Applicants' application for leave to apply for Judicial Review be dismissed.

Observations for the Applicants:

1.  The 1^st applicant (A1) last came to Hong Kong on 16/5/2013 as a domestic helper. She was arrested for theft and her contract was terminated on 12/11/2013. She was sentenced to imprisonment for 4 months on 15/11/2013. After discharged from prison, she lodged the non-refoulement claim on 12/3/2014. This was eventually the subject matter of HCAL 682/2019.

2.  Meanwhile, A1 claimed that she got married in a Mosque at To Kwa Wan under a Muslim ceremony in 2015 in Hong Kong. Her husband was an Indian claimant. They had not registered their marriage in Hong Kong. A1 gave birth to the 2^nd applicant (A2) on 29/6/2016. She gave birth to the 3^rd applicant (A3) on 15/11/2018.A1 filed the non-refoulement claims for A2 and A3 on 14/5/2019. This was eventually the subject matter of HCAL 1893/2020.

HCAL 682/2019

3.  The non-refoulement claim of A1 was dismissed by the Director on 15/10/2015 and 5/4/2017. [1] Her appeal was dismissed by the TCAB on 6/12/2018. She filed the leave application on 11/3/2019. She was about 5 days out of time. She however included A2 in her Form 86. By that time, she had not even filed the non-refoulement for A2 with the Director.

4.  In relation to HCAL 682/2019, A2 should not be included as there was no decision against her. I dismiss A2’s leave application. As for the position of A1, she was 5 days out of time. I shall deal with her leave application on that basis.

HCAL 1893/2020

5.  Eventually on 8/10/2019, the Director dismissed the claims of A2 and A3. Their appeal was dismissed by the TCAB on 16/7/2020. A1 filed the leave application on 22/9/2020 for all of them.

6.  In relation to HCAL 1893/2020, technically A1 was more than 18 months out of time for her leave application. However, in view of her leave application in HCAL 682/2019, I would treat her as out of time for 5 days only. In the same application, A2 and A3 were within time.

Background [2]

7.  A1 was born on 9/5/1977 in Central Java Province, Indonesia[3]. She was a Muslim. She had education for 9 years.  She was a domestic helper in Singapore (1997—2000; 2003—2005). She operated a grocery business from 2007 to 2013.

8.  She married in Indonesia in November 2000. She had a son and a daughter.[4] Her 1^st husband had divorced her in 2012.[5]

9.  In 2007, the marital relationship turned bad. She had frequent arguments with her 1^st husband who often assaulted her. These assaults occurred 3-4 times a month. She had bruises which she treated with ointment herself. She recovered within a week. Later, she operated a business selling daily necessities. She even earned more than her 1^st husband.

10.  She did not tell anyone about the assaults. She had not reported to the police. Since 2007, there were more than 10 occasions in which she left home with her children and stayed at her parents’ house. However, she returned home with her 1^st husband each time. In 2012, there was an aborted escape with her daughter. She returned home eventually.

11.  In 2013, she decided to come to Hong Kong for work. She stayed with her parents while processing the application with the agent. Her 1^st husband eventually signed the documents for her to work in Hong Kong. Her 1^st husband told her to send money back. She encountered no problem leaving Indonesia.

12.  She lost contact with her parents, children and her 1^st husband in Indonesia since July 2014. She thought her 1^st husband would be able to locate her in Indonesia. She was afraid of her 1^st husband and dared not report to the police.

13.  A1 remarried in Hong Kong in 2015. She was separated from her 2^nd husband in Hong Kong since early 2019 [6]. According to A1, her 2^nd husband had another girlfriend in Hong Kong. His claim had already been rejected by the TCAB. He planned to return to India shortly with A2 and A3, however, A1 preferred A2 and A3 to stay with her in Hong Kong. [7]

14.  A1—A3 feared that they would be harmed or killed by A1’s 1^st husband. A2 and A3 would face discrimination in Indonesia.

The Decision of the Director in relation to A1 on 15/10/2015

15.  The Director found that the risk that A1 would be harmed by her 1^st husband in Indonesia was low for the following reasons: [8]

(a)   A1 had been assaulted by her 1^st husband in Indonesia for many times. She could recover within a week without formal medical treatment. Despite the violence, she could operate her own business in 2007—2013. There was no injury of ‘a minimum level of severity’. There was no real risk of harm in future.

(b)   Since she left Indonesia for Hong Kong in 2013, her 1^st husband lived with her children. There was no problem until she lost contact with them. There was no evidence that her 1^st husband had harmed her family members. A1’s fear that her 1^st husband would harm her was pure speculations.

(c)   Despite she had left home on many occasions, she returned home nevertheless.  This indicated that there was no imminent danger from her 1^st husband.

(d)   There was no evidence of involvement of public officials.

(e)   The Director accepted that there was wide spread corruption and abuses of human rights in Indonesia. Cases of domestic violence against women was increasing. However, there were practical measures by the government to improve the situation. The Komnas HAM[9] was established to promote the protection of human rights. The police had adopted an empathetic approach in handling cases of violence against women and children. Trainings organized by foreign countries were given to women officers in special units for domestic violence cases. There were organizations and inter-institutional network which provided services and network available to assist victims of domestic violence.[10] The Director concluded that there was reasonable State protection.

(f)    The law in Indonesia allowed relocation. It was a large country with a population of around 255 million.  She might move to other cities like Jakarta and Blitar.  It would be difficult for her 1^st husband to locate her at other parts of Indonesia[11]. The Director concluded that it was not unduly harsh for A1 to relocate.

16.  On 15/10/2015, the Director rejected the claim of A1 on BOR 3, torture risk and persecution risk grounds. The Director also dismissed her claim on BOR 2 risk on 5/4/2017.

The Decision of the Director in relation to A2 & A3 on 8/10/2019

17.  A1 confirmed that the claims of A2 and A3 based on the same background as hers. The Director found that there was no substantial ground to support a real risk of harm to A2 and A3 by A1’s 1^st husband. The reasons were:[12]

(a)   During the period from 2007—2013, A1 was never ill-treated to a minimum level of severity. There was no evidence that her 1^st husband had any intention to cause serious harm or to kill A1. It was a case of domestic violence which could be resolved by the authorities in Indonesia.

(b)   A1 had lost contact with her 1^st husband since July 2014. The latter had no knowledge about A2 and A3 in Hong Kong. Besides, A1 had divorced her 1^st husband under Muslim law in 2012. There was no basis for the latter to be angry at the births of A2 and A3. There was no basis to kill A2 and A3 either.

(c)   It was a private matter. There was no involvement of any official. Given that there was reasonable State protection, there was no evidence that the government would not assist A1—A3 if A1 sought assistance.

(d)   There was no evidence that the 1^st husband would have the resources to locate A1—A3 all over Indonesia if they returned there.

(e)   PEKKA[13] had organized groups to teach female heads of households to empower women and to educate their children. There were integrated service centers for women and children (P2TPA) which provided psychosocial services to victims of domestic violence. There were special police units— “women’s desks”—to handle sexual offences and trafficking in women. There were financial supports for education of children in low-income families. Indonesian law was enacted in 2004 to provide protection against domestic violence. The Indonesian government had submitted to HRC[14] its determination to protect children against discrimination and violence. The KPK and National Police Commission were keen to tackle corruption. There were NGO and the Indonesian National Commission on Human Rights tasked to advocate and educate human rights awareness. There was reasonable State protection.

(f)    The Director also found that Surabaya and Bandung were cities for internal relocation. With A1’s work experience, it was not unduly harsh for the applicants to relocate there.

18.  The Director rejected the claims of A2 and A3 on all grounds on 8/10/2019.[15]

The Decision of TCAB on the appeal of A1 on 6/12/2018

19.  The applicant attended a hearing fixed on 26/5/2017.  The adjudicator rejected the appeal on 6/12/2018.

20.  The adjudicator made the following findings:[16]

(a)   The applicant had never alleged that her 1^st husband had threatened to kill her when she was in Indonesia and after she came to Hong Kong. It was only in the written representation dated 12/3/2014 that she first alleged the threat from her 1^st husband to kill her. The adjudicator doubted this assertion.

(b)   Her 1^st husband only slapped and pushed her. There was never any serious injury. She needed not consult a doctor.

(c)   She returned to her 1^st husband after each time of escape from home. She only told her parents that she came with her children to sleep over. While there were more than 10 occasions, her husband could locate them at her parents’ house which was quite close by. The adjudicator opined that it was not an ‘escape’ in the sense that she would desert home to a place where her 1^st husband could not find them. Similarly, in 2012, she returned home after the aborted ‘escape’.  The adjudicator found these incidents of ‘escape’ unreliable. She actually had no intention to leave her 1^st husband.

(d)   In 2013, she waited at her parents’ home while processing the papers for work in Hong Kong. She was not afraid that her 1^st husband could locate her. Besides, she did not feel the risk that her children might be harmed by her 1^st husband. She left them behind knowing that she would not be seeing them for a long time if she came to Hong Kong. The adjudicator found this inconsistent with the worry she asserted in the previous occasions when she always left home with her children.

(e)   The adjudicator found that there was reasonable State protection and it was not unduly harsh for her to relocate.

21.  The adjudicator found that the basis of her claim was unreliable. This was sufficient to dismiss the appeal.

22.  The adjudicator also found that it was purely a case of domestic violence. She did not report to the authorities. There was no involvement of officials. There was no injury so severe that it amounted to a minimum level of severity. It was a personal problem with no real risk of persecution. The adjudicator dismissed her appeal on 6/12/2018.[17]

The Decision of TCAB on the appeal of A2 and A3 on 16/7/2020

23.  A1 appealed against the decision of the Director on behalf of A2 and A3. A1 asserted that A2 and A3 were in fear that A1’s 1^st husband would ill-treat or kill them. A2 and A3 also feared that there would be discrimination against them.

24.  There was an oral hearing on 17/3/2020. A1 supplied further information on behalf of A2 and A3. She confirmed that her 1^st husband divorced her in 2012 under Muslim law. She believed that her 1^st husband would be angry on knowing the births of A2 and A3. As to the two children of the 1^st marriage, she had no information. As A2 and A3 were born out of wedlock, they could not get welfare provisions in medical and education. A1 had no relatives in other parts of Indonesia. It would be difficult for her and her children to relocate.[18]

25.  The adjudicator pointed out that the bases of the claims of A2 and A3 were the same as that of A1. The adjudicator found that A1 was unreliable on the following reasons:[19]

(a)   A1 had not mentioned about the death threats by her 1^st husband before and after she came to Hong Kong. She first mentioned this in her written representation in 2014. The adjudicator doubted this assertion.

(b)   The assaults by her 1^st husband never caused severe injuries. She needed not consult any doctor.

(c)   A1 left home with her children on more than 10 occasions. They just stayed at her parents’ home nearby. They returned home when her 1^st husband came to fetch them. The same occurred in the aborted ‘escape’ in 2012, A1 returned home with her daughter. The adjudicator found that A1 had no real intention to ‘escape’ from her 1^st husband all along.

(d)   In 2013, A1 waited at her parents’ home while processing the papers for her work in Hong Kong. This was inconsistent with her intention to ‘escape’ as she fully knew her 1^st husband would locate at her parents’ home as before.

(e)   In her NCF, she had not mentioned the divorce in 2012. On the contrary, she still addressed the 1^st husband as her husband. The agent also insisted the signature from the 1^st husband while processing the papers in 2013. However, she insisted during the oral hearing she had divorced in 2012. She explained that she was not asked about her divorce while compiling the NCF. She could not explain why she mentioned the divorce in the NCF of A2 and A3 [20].

(f)   It was pure speculation that her 1^st husband would not spare A2 and A3. There was nothing to support that assertion.

(g)   A1 did not mention her marriage on 10/5/2015 in Hong Kong in her NCF and the NCF of A2 and A3.

(h)   A1 told the adjudicator that she was assaulted by her 1^st husband a few days before she left Indonesia in 2013. Her 1^st husband even threatened that he would not allow her to marry again. This was not mentioned in her NCF and the NCF of A2 and A3. This was also inconsistent with A1’s evidence during the oral hearing that she did not see her 1^st husband since 2012.

26.  Given the above inconsistencies, the adjudicator found that A1 was unreliable. The adjudicator further pointed out the following in relation to the claims of A2 and A3:[21]

(a)   A1 had divorced her 1^st husband. At that time, A1 owed a debt to the bank. She had no job. Her 1^st husband had no interest in A1.

(b)   A1 served a custodial sentence in Hong Kong around 2013/2014. She had not sent money to her 1^st husband since then. There was no evidence that her 1^st husband had demanded money for his use or for his 2 children in Indonesia. They had been living apart after the divorce. There was no motive for her 1^st husband to locate her.

(c)   Her 1^st husband did not know about her marriage and the births of A2 and A3. There was no reason for him to locate the applicants if they returned to Indonesia.

(d)   The adjudicator was satisfied that there were reasonable options for the applicants to relocate to cities such as Surabaya and Jakarta. The population in those cities was large. It would be difficult for her 1^st husband to locate them.

(e)   The adjudicator pointed out that Rifka Annisa was a NGO providing counselling services to victims of domestic violence. A network was set up in a number of cities including Jakarta and Surabaya. A2 and A3 had never been to Indonesia, there was no evidence of discrimination in the past. There were NGO such as PEKKA which assisted female headed household to start business and educate their children. There were financial supports for low income families. The Indonesian constitution had provisions for the protection of the rights of every child against violence and discrimination. The government had submitted to the UNHCR that there would be protection against persecution in accordance with the ICCPR.

(f)   It was a classic domestic violence case. The evidence suggested that the risk of ill-treatment by A1’s 1^st husband was unlikely to take place. There was no involvement of any public official. The claim on torture risk failed.

(g)   There was no evidence that A2 and A3 would suffer personal risk that their lives would be arbitrarily deprived. There was no real risk under BOR 2. This claim failed.

(h)   There was no evidence of ill-treatment to a minimum level of severity. The risk of harm was unlikely to occur. There was no real risk of harm. The claim under BOR 3 failed.

(i)   The adjudicator had considered various COI which supported the findings that there were NGOs which could assist the applicants. In fact, the Indonesian government had pledged to protect the rights of children both under the ICCPR and the Indonesian constitution. The violence arose from personal problems between A1 and her 1^st husband, it was not persecution as defined under the Convention. The claim under persecution failed.

27.  The adjudicator rejected the appeal of A2 and A3 on 16/7/2020.

Judicial Review

28.  The applicant filed the leave application on 22/9/2020 in HCAL1893/2020. In her affirmation, she maintained that her 1^st husband would kill her and her children if they returned to Indonesia.  This leave application included all applicants.

29.  A1 attended an oral hearing on 9/8/2021. She informed this court that she had re-married in 2015 in Hong Kong. She later gave birth to A2 and A3. Her 2^nd husband was a non-refoulement claimant from India. They had separated in 2019 as he had another girlfriend. She preferred A2 and A3 to stay with her in Hong Kong. She understood that A2 and A3 would be entitled to Indonesian nationality.

The position of A1

30.  A1 was out of time for about 5 days in relation to her intended judicial review when she first lodged the leave application in HCAL 682/2019 on 11/3/2019. I shall deal with her leave application in HCAL 1893/2020 on that basis. Given that the bases of the claim in both leave applications are identical, I shall make one decision only. 

31.  A1 should have applied for extension of time.  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 reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted. [22]

32.  I accept that the delay was only 5 days. It is not substantial. However, it is undue delay as A1 had not filed the leave application within 3 months from the TCAB decision. In any event, the merit of the intended judicial review is the most important consideration at this stage. 

33.  The adjudicator had analyzed the evidence of A1. She was found to be untruthful given all the inconsistencies. I agree with the reasons of the adjudicator summarized in paragraphs 20—22 & 25 above. There is no merit in the intended judicial review. 

The position of A2 and A3

34.  In a case involving minors, it is important that the adjudicator considers the claim of the minors separately. The dismissal of the claim of a parent does not follow that the child’s claim would be dismissed as a matter of course. Further consideration of the personal situations of the child is always necessary.[23]

35.  The adjudicator had separately considered the claim of A2 and A3 in the decision dated 16/7/2020. The adjudicator had considered the issue of social support and the possibility of discrimination. He found that there were services by NGO concerning A2 and A3. There was reasonable State protection and relocation options.

36.  While the adjudicator had not specifically considered the issue of nationality, A1 confirmed with this court during the oral hearing on 9/8/2021 that A2 and A3 would be entitled to Indonesian nationality. This is consistent with the understanding of this court in dealing with similar cases that a child born of an Indonesian mother, under a legal or illegal marriage, would entitle to citizenship. [24]

37.  There was no issue specific to A2—A3 which had not been advanced or considered by the TCAB because of lack of legal representation.  I shall treat the absence of legal representation for A2—A3 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.[25]

38.  In my view, there is no error of law and procedure.  I find that the TCAB decision reasonable. There is no merit in the intended judicial review for A2 and A3. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success.

Conclusion

39.  For the case of A1, there is no good reason for the delay. The intended judicial review is not reasonably arguable.  There is no reasonable prospect of success. I refuse the extension of time for both leave applications. I refuse leave for both intended judicial reviews.

40.  For the case of A2 and A3, I refuse leave for the intended judicial review in HCAL 1893/2020.

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