LUSI NOVIYANTI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 818/2017

[2018] HKCFI 752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 818 of 2017

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 Indonesian national of mixed Chinese-Indonesian ethnicity who last arrived in Hong Kong on 8 March 2013 with permission to work as a domestic helper for two years until 8 March 2015 or within two weeks of the termination thereof.  However, after her employment contract was terminated on 30 April 2013 the applicant did not depart from Hong Kong but overstayed until she was arrested by the police on 9 March 2014 and was referred to the Immigration department for investigation.  On 12 March 2014 she made her non-refoulement claim on the grounds that she would be harmed or killed by her abusive husband or by her creditor for failing to repay monies owed to her if she is to return to Indonesia.  She has since been released on recognizance pending the legal process of her claim.

2.  The applicant was born and raised in Ciluar, Bogor, Jawa Barat, Indonesia where her parents and an elder brother still live.  She had education up to university level but did not complete her university degree.  In 1997 she married her husband with whom she has four children.  After marriage she became a full-time housewife and mother.  In early 2007 her father had a stroke and was hospitalized on several occasions resulting in expensive medical bills totaling between 450 and 500 million Indonesian rupiahs, and to pay for these medical expenses she had to borrow on three occasions from a local money-lender known as WW in the total sum of about 410 million Indonesian rupiahs repayable at a monthly interest rate of 20% on the principal loans.  The applicant however does not know anything else about WW.

3.  When her husband learnt about the loans he became very upset with the applicant and on one occasion in about mid-2007 during a heated quarrel he hit her violently on the head causing her to lose consciousness for about 10 minutes for which she was taken by her mother to a clinic for treatment but she never reported the matter to police.  After the incident her husband left their home to reside with his parents and the applicant has never seen him again.  In order to repay her debts owed to WW the applicant went to work in Singapore as a domestic worker in 2007 by making monthly remittance to her mother for her repayments to WW and for looking after her children.

4.  However, after making only two or three repayments to WW, the applicant’s mother stopped do so as she needed the money to meet further medical expenses of the applicant’s father, and WW would send her people to look for the applicant with threats to her mother that if they found the applicant they would kill her for defaulting with her loans repayments.

5.  In 2010 the applicant returned to Indonesia and hid herself in her mother’s home from WW’s men, and later the same year she left Indonesia to work in Qatar but her job was soon terminated and she returned to Indonesia again hiding in her mother’s home from her creditor.  In early 2011 when WW’s men again came looking for her at her mother’s home, the applicant left to hide in her cousin’s place in Semplak until January 2012 when she came to Hong Kong to work as a domestic helper during which her creditor kept looking for her at her mother’s home with threats to her parents that her men would kill the applicant when she returns to Indonesia.  She was also told by her mother that her husband had also made similar threats against her and that he would take her children away, hence for her own safety she decided not to return to Indonesia upon the termination of her employment in Hong Kong and subsequently raised her non-refoulement claim for protection.

6.  By a Notice of Decision dated 19 November 2015 her claim was rejected by the Director of Immigration (“the Director”) on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 detailed decision and on the applicant’s evidence the Director considered her disputes with her creditor and her husband as private local matters and that according to objective Country of Origin Information (“COI”) state and police protection would be available to the applicant even as mixed Chinese-Indonesian ethnicity upon her return to Indonesia, and that internal relocation alternatives are also available and reasonable in other parts of Indonesia given the large population of more than 256 million people spread all over the vast territory of Indonesia, and hence it would not be unduly harsh for the applicant to go to cities such as Jakarta where she can live and work safely free from any harm or risk from her creditor or her husband.     

8.  By a Notice of Further Decision dated 3 November 2016 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation for her to submit any additional facts relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the applicant was in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the appeal of which she filed on 2 December 2015, and for which she attended two oral hearings on 24 November 2016 and 5 September 2017 in person before the Board during which she gave evidence and answered questions put to her.  On 12 October 2017 her appeal was dismissed by the Board which also confirmed the Director’s decisions.

10.  In its decision the Board expressed doubts over the applicant’s reliability as a witness in respect of various aspects of her loans from WW or her dispute with her husband, that it was not satisfied that on the evidence that she would be at risk of persecution or serious harm from her creditor or her husband if she returned to Indonesia given the long lapse of time since those disputes, and that in any event with her education level and experience of working independently overseas, it concluded that she can safely and reasonably live away from her local area elsewhere in Indonesia such as Jakarta or Surabaya free from any such risk from her creditor or her husband. 

11.  The applicant on 30 October 2017 filed her Form 86 for leave to apply for judicial review of both the decisions of the Board and the Director, and in her supporting affirmation of the same date, she set out her grounds for her intended challenge which can essentially be summarized as follows:

(a) failure to conduct a fair or proper consideration of the COI in their assessment of her claim;

(b) failure to consider properly or adequately the risk of harms to her from her creditor or her husband;

(c) failure to consider properly the concept of state acquiescence of the risks of harm to her;

(d) failure to make proper or adequate inquiry into the effectiveness of steps taken by the state or the police to protect borrowers from money-lenders and domestic violence from abusive spouses; and

(e) that their conclusion that it would be safe for her to return to Indonesia from future harm is without proper basis.   

12.  All of these grounds are such broad and vague statements that in the absence of any particulars or specifics provided by the applicant, it is simply impossible to know the basis for any of them, and as correctly found by both the Director and the Board that her disputes with her creditor and her husband are both private and localized affairs, and in the absence of any evidence to suggest that either of their actions were sanctioned or acquiesced by the state or the police or with their consent or involvement, I do not see any basis or relevancy in ground (c) either.

13.  As for ground (d) on inquiry into COI about the general effectiveness of state’s protection from risks from money-lenders to borrowers or from domestic violence by abusive husbands, they do not alone constitute a sufficient ground once it has been established by both the Director and the Board that such risks to the applicant if any are confined to private and local matters and that internal relocation alternatives are available and reasonable, as pointed out by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526 at paragraph 29:

“ Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of ‘a consistent pattern of gross, flagrant or mass violations of human rights’ (art 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be ‘personally at risk’. This is because the aim of the determination under CAT is to establish ‘whether the individual concerned would be personally at risk of being subjected to torture in the country to which she would return’. …”

14.  Nevertheless, having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I am unable to find any error in law or procedural unfairness by either of them, or any failure on their part to apply high standards of fairness in the process of arriving at their conclusion.  In the premises and for these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I 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