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HCAL 2974/2018
[2021] HKCFI 84
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2974 of 2018
BETWEEN
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Lilis Juniyanti |
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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and |
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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 was a domestic helper in Hong Kong from 2003 to 2016. Her contract ended around October 2016. She was allowed to stay in Hong Kong as a visitor until 8 January 2017. She overstayed and surrendered to the Immigration Department on 11 January 2017. She was granted recognizance. She raised the non-refoulement claim on 4 May 2017 and 29 May 2017.
2. She feared that she might be harmed or killed by the loan shark if she returned to Indonesia. She could not settle her debt.
3. Her non-refoulement claim was rejected by the Director of Immigration on 22 January 2018. Her appeal to the TCAB was rejected on 17 December 2018. She filed the leave application on 24 December 2018.
Background
4. The applicant was born on 25 October 1979. She was from Village Lemahabang Kulon, Sub District Lemahabang, District Cirebon, West Java, Indonesia. She was divorced with a daughter aged 16. She received education for 14 years. She was employed as a domestic helper in Hong Kong from 2003 to 2016.
5. About July 2006, her husband needed 50 million Rupiah to pay the agent fee for arranging employment in Taiwan. He persuaded her to use her parents’ house as the collateral for the loan.[1] She signed a document that her husband could use her name to borrow the loan from Mr Subandi—a notorious loan shark.
6. Around August 2006, while she was in Hong Kong, her husband informed her on the phone that he had borrowed 50 million Rupiah from the loan shark in her name. He claimed that they had to repay an annual interest of 5 million Rupiah and to repay the loan in 5 years. There was no written loan agreement. Her parents’ house was used as the collateral. She started paying interest to the loan shark by the end of 2007.
7. In 2012, the loan shark agreed to defer the repayment of the loan so long as she continued to pay the annual interest of 5 million Rupiah.
8. Around 2015, she borrowed another loan (HK$30,000)[2] in Hong Kong to support her husband’s coffee shop business in Indonesia. She remitted HK$20,000 to her husband with the understanding that half of this sum was to repay the loan shark. She later learned from his friend that her husband had gone to another city with a woman.
9. Her contract in Hong Kong ended around October 2016. She could not repay the loan shark. She received many text messages and phone calls from the loan shark who threatened to harm her daughter.
10. Around November 2016, her parents told her on the phone that they were driven out from their house by the loan shark. They moved to her uncle’s house in Surabaya. Her daughter was safe as she stayed with her in-laws. Her parents related to her that the loan shark threatened to kill her if she returned to Indonesia.
11. She changed her phone number in December 2016 to avoid the loan shark. However, she learned from her neighbour that the loan shark kept asking about her and threatened to harm her.
12. She was unable to find a new contract in Hong Kong by late 2016. She overstayed in Hong Kong for her safety. She filed the non-refoulement claim when she learned about the scheme in January 2017.[3]
13. About December 2017, she learned from her parents that they were safe with her uncle in Surabaya. Her daughter was also safe with her in-laws.
14. She could not seek assistance from the Indonesian Police as she could not afford a bribe. She knew about the office of Ombudsman and other channels of complaint. However, she would not make use of them.
15. She could not relocate as the loan shark could still locate her. She did not want to trouble her friends. She could not relocate to Jakarta and Palembang. [4]
Decision of the Director of Immigration
16. The Director of Immigration concluded that there was no real and substantial risk of her being harmed by the loan shark on the following grounds:[5]
(a) There was only verbal threat. There was never physical harm inflicted on her or her family. She asked the agent to seek a new contract. It was only after failing such that she surrendered to the Immigration Department. She changed her contact number in Hong Kong. Nothing had happened. There was no sign of mental stress. There was no ill-treatment amounted to a minimum level of severity.
(b) The loan shark agreed to extend the period of repayment in 2012. She could repay the annual interest until 2016. Her parents and her daughter were never harmed. Nothing happened to them even after she ignored the calls from the loan shark and changed her phone number in December 2016. The loan shark never intended to kill her.
(c) She had only met the loan shark once in 2006. Her husband was safe in another city despite the loan was not repaid. Had the loan shark wanted to cause harm, her husband should be the first target. This showed that the influence of the loan shark was quite localised.
(d) It was a private money dispute with no involvement of any public official or the State.
(e) The Director had considered various Reports from US Department of State confirming that there was corruption in the police in Indonesia. On the other hand, there were also reports that the Indonesian government had put measures to tackle corruption. The Corruption Eradication Commission (‘KPK’) carried out investigations and prosecutions. The ‘Ombudsman Commission’ and Judicial Commission tackled corruption amount judges. The Ombudsman also investigated complaints and irregularities in the public sector. The KPK and Anti-corruption courts were set up to handle top level corruption. There were NGO set up to investigate violations in human rights. The Director concluded that there was reasonable State protection.
(f) The applicant had never sought help from the police in Indonesia. There was no evidence that the police would not or unable to assist her.
(g) There was no evidence that the loan shark could locate her in other parts of Indonesia. Internal relocation was permissible under Indonesian Law. Indonesia was a big country and had a large population. It would be very difficult for the loan shark to locate her. In fact, Jakarta and Palembang would be possible options for relocation.
17. The Director of Immigration opined that there was no intense physical or mental suffering. There was no evidence of genuine and substantial risk of ill-treatment amounted to a minimum level of severity as stipulated under BOR 3. The evidence did not engage BOR 2—personal and real risk of arbitrary deprivation of life.[6]
18. The dispute between the loan shark and the applicant was private in nature. There was no persecution risk as defined under the Refugee Convention. Her fear was not well founded. The claim on persecution risk failed.[7]
19. There was no evidence that the conduct of the loan shark was instigated by or with the consent or acquiescence of a state or public official. Given reasonable State protection, there was no evidence that the authorities would not take any action had that been known to them. In addition, she was not targeted, arrested or detained by the Indonesian Government. There was no torture as defined under Part VIIC of the Immigration Ordinance. Torture risk was not established.[8]
Decision of the Torture Claims Appeal Board
20. The Adjudicator fixed an oral hearing on 27 July 2018. The applicant was assisted by an Indonesian interpreter. The adjudicator noted the following and found that there was no real risk of harm:
(a) Her family home was in joint name of her and her mother. The adjudicator queried how the loan shark could have seized it. She did not know whether it was sold to repay the debt. [9]
(b) In her NCF, she mentioned borrowing a loan of HK$30,000 in 2015 in Hong Kong to assist her husband setting up a business. She gave HK$20,000 for her husband to set up a business but her husband ran away with a woman. In the hearing, she did not mention that the loan was to assist her husband’s business but only for repayment of the debt.[10]
(c) She mentioned another loan taken out in 2009 in the sum of HK$15,000 to pay for her husband’s agent fee for arranging employment in Taiwan. This loan was not mentioned in the NCF.[11]
(d) The applicant gave evidence that from 2007-2015, she repaid 15 million Rupiah to loan shark. This sum was about 3 years’ interest. It indicated that the applicant had not paid the annual interest according to the loan agreement. In fact, the HK$20,000 given to her husband in 2015 was not sufficient to settle the principal.[12]
(e) Although there were problems with the police, there was no evidence that the police would not take action if the applicant had reported.[13]
(f) The applicant had other siblings and an uncle in other cities of Indonesia. There was no reason that she could not get assistance from them in relocating. There was an improved social security system since 2013 and a new health insurance scheme by 2019. There should be sufficient social support if needed.[14]
(g) After considering reliable sources from COI, the adjudicator disagreed with the applicant’s claim that Indonesian government was among the most violent and brutal ones. The adjudicator was satisfied that the COI considered by the Director showed that there was no consistent pattern of gross, flagrant or mass violations of human rights. The adjudicator was satisfied that there was reasonable State protection and relocation alternatives. [15]
21. The Adjudicator found that the conduct of the loan shark was not instigated or with consent or acquiescence of a public official or any person acting in official capacity. There was no physical or mental torture. The torture claim under s 37U failed.
22. The applicant had not provided any evidence that she would be subjected to torture or CIDTP if she were to return to Indonesia. The risk of harm was not genuine and substantial. BOR 3 claim failed.
23. There was no evidence that she would be subjected to arbitrary deprivation of life. BOR 2 claim failed.
24. The Adjudicator found that the applicant’s fear did not fall within any of the categories of persecution risk defined under the Refugee Convention. There was no well-founded fear of persecution. The Adjudicator had considered the Country of Origin Information in the Director’s decision. She found there was adequate state protection. This ground failed.[16]
Judicial Review
25. The applicant filed the leave application for judicial review on 24 December 2018. She did not specify any error in the decisions of the Director and the TCAB.
26. I have considered the content of the non-refoulement claim as set out in the decisions of the Director of Immigration and the Adjudicator. I agree with the reasons therein.
27. There is no error of law and procedure. The decisions are reasonable.
Conclusion
28. In my judgment, the leave application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 13th day of January 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 13 January 2021
Lilis Juniyanti
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 13 January 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10157/18/2/41/I1062
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3330/17 (formerly RBCZ 11344/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Her parents had transferred the title of the house to her. The house certificate was in her name.
[2] From Prime Credit.
[3] Decision of the Director, §§6.1—6.20.
[4] Decision of the Director, §§6.21—6.25.
[5] Decision of the Director, §§10—19.5.
[6] Decision of the Director, §§20—25.
[7] Decision of the Director, §§26—30.
[8] Decision of the Director, §§31—33.
[9] Decision of TCAB, §§44-45, 64. In §64, the adjudicator mentioned that her house was worth100 million Rupiah. It was only sufficient for paying 20 months’ interest. This might be irrelevant given that the loan was on annual interest. However, it would not affect the validity of her conclusion as she queried how the house could be sold. It was in joint name of the applicant and her mother.
[10] Decision of TCAB, §§62-63.
[11] Ditto.
[12] Decision of TCAB, §63. The adjudicator mentioned the annual interest was ‘5,000 million Rupiah’. It was obviously a typo for 5 million Rupiah. The adjudicator correctly mentioned in the same paragraph that 15 million Rupiah was only sufficient for the interest of 3 years.
[13] Decision of TCAB, §§66-67.
[14] Decision of TCAB, §§68-73.
[15] Decision of TCAB, §§76-82.
[16] Decision of TCAB, §§84-96.
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