RE K

HCAL 12/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 12 OF 2013

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review. The applicant seeks judicial review of the Notice of Determination by the Director of Immigration dated 30 November 2012 rejecting her claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) filed on 1 February 2011.

No appeal before applying for leave for judicial review

2.  The applicant had been advised by the director in the notice that she could appeal against the determination by petitioning to the Chief Executive or appealing to the Torture Claims Appeal Board which was set up on 3 December 2012 to deal with appeals against rejection of CAT claims by the director.  The applicant did not pursue either avenue and did not give any explanation for not doing so before making this application.  For this reason alone, her application should be dismissed (see para. 53/14/22 of Hong Kong Civil Procedure 2013).

The facts of the claim

3.  The applicant came to Hong Kong from Shenzhen on 15 May 2009.  She was permitted to stay here as a foreign domestic helper until 30 August 2010.  Her employment was however pre-maturely terminated on 10 April 2010.  She was then allowed to stay as a visitor until 17 August 2010, but she overstayed.  She surrendered herself to the police on 17 October 2010.  She was convicted of overstaying on 7 January 2011 and sentenced to 14 days imprisonment.  Upon discharge from prison on the same day, she was transferred to the Immigration Department for repatriation.  She lodged her CAT claim on 1 February 2011 and was released on recognizance on 22 February 2011 pending determination of her claim. 

4.  She stated in a questionnaire to the director and at an interview by an officer of the Immigration Department the facts that she relied on in making her CAT claim.  She was born and raised in Java Timur, Indonesia and educated up to the second year of high school.

5.  She got married in May 1990 to one T whom she knew to be an alcoholic and who had treated her with violence previously.  She was frequently beaten up by T.  She was also traumatized because T used to carry a knife wherever he went.

6.  She obtained a divorce in 1994 but continued to live with T because of the need for financial support for her son and herself. She continued to be physically abused by T who did not allow her to re-marry.

7.  She had an affair with T’s younger brother from mid-2005 onwards.  T and his family learnt of it in 2006 and T beat them up. She did not report the matter to the police as she felt shameful and disgraced and wanted to keep the incident in a low profile.  Her boyfriend went away and T treated her worse than before.

8.  Despite the ill treatment, she never reported T to the police as T’s incarceration would cease her financial support.  She also feared that T would revenge after incarceration.

9.  When she went to live with a friend not far from home, T ordered her to return, beat her up and made threats to warn her not to do it again.

10.  In June 2006, she went to stay at an employment agency in Surabaya for 2 months.  Nothing happened then.  She then came to Hong Kong for employment purpose and had not returned to Indonesia since then. 

11.  Whilst in Indonesia, she had not been arrested, detained or imprisoned.  She had no difficulty in applying for her passport and suffered no hindrance upon departing that country.

Decision

12.  The applicant, in order to succeed in her CAT claim, has the burden of proving that there are substantial grounds for believing that she would be in danger of being subjected to torture if repatriated to Indonesia.

13.  Torture is defined in Article 1 of the Convention as follows:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

14.  In the light of the definition of torture, I do not think the decision of the director can be faulted as the applicant has not suggested that the Indonesian government or any of its officers had anything to do with her physical abuse by T.  There is not even any suggestion or hint of acquiescence by that government or any of its officers to T’s conduct against which she complained.  She in fact chose not to report T to the police for her own reasons.  There are legislations in Indonesia protecting women from domestic violence and punishing those who are guilty of it.

15.  In the premises, the applicant cannot prove any risk of torture if repatriated to Indonesia.  There is nothing wrong with the determination of the director. 

16.  I therefore dismiss this application for leave to apply for judicial review.