MUGIYEM TRI LESTARI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 916/2018

[2019] HKCFI 2510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 916 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Indonesia who last arrived in Hong Kong on 25 May 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 February 2016 or within two weeks of its early termination, but when her contract was prematurely terminated on 10 March 2016, she did not depart and instead overstayed until she was arrested by the police on 2 June 2016.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband and/or by her creditor for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim. 

2.  The Applicant was born and raised in Village Bunton Bendasasri, Cilacap, Adipala,Central Java, Indonesia.  After leaving school she married her husband and gave birth to a daughter and a son.  As her husband did not have a job and instead indulged in abusing alcohol and drugs, the Applicant worked as a waitress to support the family.

3.  In 2007 she was forced by her husband to borrow 100 million Indonesian rupees from a loan shark for his own use and repayable by monthly instalments from her income,but one day in April 2007 when she came home from work to find her husband and his friends trying to rape her daughter, she called the police and as a result her husband was arrested and subsequently convicted and sentenced by the court to prison for three years.

4.  Soon after the Applicant went to work in Singapore as a foreign domestic helper and stopped repaying her loan to her creditor, and when she returned to Indonesia in 2011,her creditor located her at her mother’s home and demanded her to repay her loan during which she was slapped and was threatened that she would be killed if she failed to repay the loan.

5.  To avoid her creditor and also her husband who had threatened to take revenge against her upon his release from prison, the Applicant therefore applied to come to work in Hong Kong, and eventually did in early 2012, but when her second employment contract was prematurely terminated in 2016, she did not depart and instead overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 31October 2016 and attended screening interview beforethe Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 13 January 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there would be any real risk of her being harmed by her husband or his creditor upon her return to Indonesia due to the absence or low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other area of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband or her creditor to locate her.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 5 March 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 3 May 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found exaggerations in the Applicant’s claim and had issue with her creditability, that even on her own case that the threats she had allegedly received from her husband and the creditor did not attain the minimum severity under any of the proscribed risks, and that in any event that state/police protection as well as reasonableinternal relocation would be available to the Applicant away from her home district in largecities elsewhere in Indonesia that her non-refoulement claim failed on all applicable grounds.

10.  On 24 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

 (1) lack of legal representation for her claim under BOR 2 risk before the Director and for her appeal before the Board; and

 (2) that it was wrong for the Board to find that state or police protection would be available to the Applicant upon her return to Indonesia as all government officials andthe police were corrupt and no protection would be given without bribes being paid.

11.  For her complaint in Ground (1) of not being provided legal representation for her claim under BOR 2 risk before the Director and for her appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretaryfor Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Directorof Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

12.  The Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty.  As suchI do not find anything amiss arising from the lack of legal representation in her appeal process,and I do not think this ground is reasonably arguable.

13.  As for her complaint of no legal representation for her claim under BOR2 risk before the Director, it is clearly factually incorrect as her claim under BOR 2 risk was presented and considered together with her other claims under torture, BOR 3 and persecution risks (see [22] – [27] of the Director’s decision) for which she was represented by her lawyer from DLS.  There is simply no basis or merit in this complaint of the Applicant.

14.  Regarding her complaint under Ground (2) that state/police would only protect upon payment of bribes as the government officials and the police were all corrupt, it is just a broad and vague assertion by the Applicant without particulars and specifics, and while there were indeed concerns over problems of corruptions and inefficiencies of the government and police in Indonesia, that her husband had been arrested by the police and subsequently convicted by the court for the rape incident without any payment of bribes by the Applicant as well as reliable COI show that reforms have taken place and the situation has improved.  In the circumstances I do not find this ground reasonably arguable either.

15.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

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