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HCAL 1621/2019
[2021] HKCFI 1408
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1621 of 2019
BETWEEN
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Chandra Amelia |
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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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 came to Hong Kong in 2008 as a domestic helper. After her contract expired, she overstayed since 21/2/2012. She was arrested on 15/7/2015. She was convicted of overstaying. She was sentenced to imprisonment for 5 months. She filed the non-refoulement claim in this case on 10/8/2015.
2. Her claim was rejected by the Director on 27/9/2018. Her appeal was dismissed by the TCAB on 6/6/2019. She filed the leave application on 14/6/2019.
3. The applicant was born on 17/9/1982 in Lumajang, Indonesia. She had education for 9 years. She was a saleslady (2005-2006), a farmer (2006-2008) and domestic helper in Hong Kong (2008-2010). She was single. Her parents and two siblings lived in Indonesia.
Background
4. About 2006, her parents borrowed a loan of 40 million rupees[1] to pay the medical fee of her mother. The money lender was a known triad. A high interest rate was charged. By the end of 2006, her parents could not repay even the interest.
5. About mid-2007, the money lender and his men came to her house pressing for payment. They assaulted her and her father with sticks. She promised to repay the loan for her parents. They damaged her properties before leaving. She and her father could not afford the medical fee. They just put ointment on the injured areas. She recovered in a few weeks.
6. She did not report to the police as she could not afford a bribe. She moved to Jakarta to stay with some friends for 3 months.
7. Around 2008, the money lender and his men came again. Her parents were unable to pay. She was forced to sign a guarantee undertaking to repay. She told them that she would work in Hong Kong. The men threatened to kill her if she failed to pay.
8. Her friend advised her that she must leave Indonesia. She could apply for protection in Hong Kong. After training for 3 months, she finally came to Hong Kong in October 2008. She remitted HKD $2,000 per month to her parents. However, it was insufficient to repay the loan.
9. Her contract was terminated prematurely.She was sent back to Indonesia by the agent around December 2008. She stayed at the agency until June 2009 when she returned to Hong Kong under another contract.
10. She explained that she did not know the scheme when first arrived at Hong Kong in 2008. The Director drew her attention to the NCF in which she stated that she came to Hong Kong for seeking protection, she then asserted that she wanted to continue working as a domestic helper but her contract was terminated. She later learned from a friend about the scheme and applied.
11. She was in fear that the money lender would harm or kill her if she returned to Indonesia as she failed to repay her parents’ loan.
12. The authorities in Indonesia were corrupt. She had no money to bribe them. The police were biased. She did not have any means to relocate in Indonesia. The money lender had an extensive network and could trace her anywhere in Indonesia. She lost contact with her parents since 2014 as they had changed their phone numbers.
The Decision of the Director
13. The Director found that there was no substantial ground to believe that she would be at risk of being harmed by the money lender for the following reasons: [2]
(a) The applicant encountered the money lender and his men in 2007 and 2008. She was assaulted in 2007. She suffered some injuries which was not serious. In 2008, there was only verbal threat. She returned to Indonesia in 2009 while waiting for another contract to return to Hong Kong. She was not located during those 6 months. The evidence did not support any ill-treatment amounting to “a minimum level of severity”.
(b) There was no evidence to indicate that the money lender had been pursuing her even when she was in Hong Kong. She was actually safe while staying with a friend in Jakarta and the agent in Kediri.
(c) She returned to her home after she recovered from the first attack. She then sought employment overseas to avoid the money lender. She received training by the agent for 3 months. Her conduct showed that the risk of harm to her was not imminent. She was not in such fear which affected her mentally.
(d) There was no evidence that any public official was involved. It was a personal matter.
(e) The Director accepted that there was corruption and infringement of human rights by the police. Domestic violence against women was common. 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 were National Ombudsman offices and NGO established to tackle human rights complaints. The National Commission of Violence against Women was established. There were NGO which provided services and network available to assist victims of domestic violence. The Director concluded that there was reasonable State protection.
(f) The law in Indonesia allowed relocation. It was a country of about 2 million km2 with a population of around 258 million. She might move to other city like Jakarta, Kediri or Bandung. The money lender would not be able to locate her. There were NGO assisting women after relocation. The Director concluded that it was not unduly harsh for the applicant to relocate.
14. The Director rejected her claim on all grounds on 27/9/2018.
The Decision of TCAB
15. The applicant gave evidence in the hearing fixed on 23/4/2019. The adjudicator rejected the appeal on 6/6/2019.
16. The adjudicator found that there was no genuine threat to the applicant from the money lender and his men. The adjudicator made the following findings:[3]
(a) The applicant asserted in the NCF that the money lender was connected with the police. However, she indicated she had no knowledge of any connection during the TCAB hearing. The adjudicator opined that there was no official involvement and the loan was a private matter.
(b) In her NCF, the applicant stressed that she left Indonesia in October 2008 to save her life by making non-refoulement application. It was on the advice of her friend and supported by her parents. However, she did not file any application until August 2015 after she was arrested for overstaying. Her explanation that she wanted to continue employment was not accepted. The adjudicator doubted that she was genuinely in fear. [4]
(c) The applicant was safe while staying with a friend in Jakarta for 3 months. She was safe while undergoing training by the agent in Kediri. She was not located by the money lender while waiting for a new contract to return to Hong Kong in 2009. The adjudicator doubted that she was in genuine fear of being killed.
(d) The applicant asserted that her home would be possessed by the money lender. However, her evidence was vague in this aspect and could not take her case any further.
(e) The adjudicator opined that the applicant could relocate elsewhere in Indonesia. There was no evidence that the money lender had the resources to track her down.
17. The adjudicator found that there was no genuine threat from the money lender or his men as the applicant asserted. In any event, she could relocate. Her claim was rejected.
Judicial Review
18. The applicant filed the leave application on 14/6/2019. In her affirmation, she complained that the adjudicator had not satisfactorily considered the COI. The adjudicator had not properly assessed her fear and BOR 3 risk if she returned to Indonesia.
19. This court fixed a hearing on 9/2/2021. The applicant did not attend. The notice of hearing was sent to her last known address as recorded in the Form 86. There was no return mail. She has the duty to update her address and must bear any consequence of such failure. This court proceeded to deal with her leave application on paper.
20. The adjudicator had analyzed her evidence in detail. There were important aspects which severely undermined her credibility. I agree with the findings of the adjudicator. As to the COI, the adjudicator must have reviewed the COI listed in the decision of the Director, they are most updated at the time of the hearing. In any event, the applicant has not pointed out any aspects which are inaccurate.
21. In my view, there is no error of law and procedure. Given the evidence submitted by the applicant, I find the TCAB decision reasonable.
Conclusion
22. In my judgment, this case is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 20th day of May 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 20 May 2021
Chandra Amelia
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 20 May 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13764/18/10/106/I1492
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3356/18
(formerly RBCZ 12794/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] About HKD $22,000.
[2] Decision of the Director 27/9/2018, §§13—15.
[3] Decision of the TCAB dated 6/6/2019, §§33—44.
[4] Decision of the TCAB dated 6/6/2019, §§34—38.
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