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HCAL 240/2016
[2018] HKCFI 664
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 240 of 2016
BETWEEN
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Lili Lestari |
Applicant 1 |
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Edi Subagio Meilani Subagio |
Applicant 2 |
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and |
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Torture Claims Appeal Board |
Putative Respondent 1 |
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Director of Immigration |
Putative Respondent 2 |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by the Honourable Mr. Justice Yau :
Leave to apply for Judicial Review is refused.
Observations for the Applicants (Order by the Honourable Mr. Justice Yau):
1. Applicant 1 (“A1”) is an Indonesian female, born in Solo City of Central Java Province, Indonesia on 9 September 1982. She received education up to senior high school level in 2001. She got married in 2000 and gave birth to a son in 2002. In the same year she together with her husband, parents and son moved to Braja Sakti Hamlet in Lampung province.
2. She worked as a domestic helper in Malaysia from 2004 to 2006 and in Taiwan from 2006 to 2007. Around August 2008 she came to Hong Kong to do the same job while her husband remained in Indonesia, doing some temporary jobs earning a small income.
3. Around late August 2011 A1 returned to Indonesia for vacation. After discussion with her husband they decided to borrow some money to establish a business in Indonesia, hoping to earn more money for the family.
4. Around early September 2011 they obtained a loan of IDR 37,000,000 from a money lender named Sri Rahayu at a monthly interest of IRD 200,000 for every IRD 1,000,000 borrowed. The loan was to be repaid by monthly instalments of 3 years. The loan agreement was signed by A1 and her husband but it was lost in a flood.
5. The money lender was their neighbour and known for being a loan shark. They borrowed money from her because they did not have collateral to obtain a loan by any other means and believed she was the only one who could help them. She was wealthy and influential in the district of Braja Sakti Hamlet. A1, however, did not know if she had any political affiliations or was in any way connected with the Indonesian government.
6. A1 returned to work in Hong Kong after obtaining the loan. Her husband set up a grocery store and A1 helped him repay the loan by her income in Hong Kong. The business of her husband did not do well. In December 2012 the employment contract of A1 was terminated and A1 and her husband were unable to repay the loan. The money lender kept pressing her husband for repayment in an aggressive manner and when he was unable to do so she said to him angrily, “You would see what will happen. I will ruin your life.”
7. A1 talked to the money lender in 2013 and the latter agreed to allow her to repay the money within 3 years, but she failed to do so because she kept changing her employer in Hong Kong and had to pay the agency fees from her income. She was only employed for a few months in the early part of 2013 and her income was not sufficient to repay the loan. The money lender threatened her over telephone on numerous occasions that she would destroy her if she failed to repay the loan. The money lender also said she would make a report to the police and would beat her up. A1 changed her telephone number 5 to 6 times to avoid her calls.
8. A1’s last contract of employment was terminated on 5 May 2013, but she chose to stay in Hong Kong to look for new employment as she was afraid that she would be harmed by the money lender if she returned to Indonesia. This was in breach of her conditions of stay which required her to leave Hong Kong within 2 weeks of the termination of her employment. She was arrested for overstaying in Hong Kong on 18 August 2013 and was convicted of the offence and sentenced to 2 months imprisonment suspended for 3 years on 23 August 2013. She was detained in the Castle Peak Bay Immigration Centre (“CIC”) until she was released on recognizance on 5 October 2013.
9. A1’s husband came to Hong Kong in mid-2013 on a visitor visa in order to avoid the money lender who had threatened to hire some thugs to beat him up. A1 and her husband then lived together. The husband overstayed in Hong Kong after the expiry of his visitor visa. A1 gave birth to a daughter in Hong Kong on 2 May 2014 who is the second applicant (“A2”) in the present case. She is now under the custody and care of A1 and her husband.
10. A removal order was issued against A1 on 2 December 2013 and her appeal against the order was dismissed on 23 December 2013. She approached the United Nations High Commission for Refugees for help in late 2013 because she only learnt about such an organisation while she was detained in CIC. She raised her refoulement claim on 5 May 2014 on grounds of the threats of the money lender. She also raised the same claim for A2 on 10 September 2014 as she feared that A2 would face the same threats of the money lender if she returned to Indonesia.
11. A1 had not moved to any other part of Indonesia to avoid the money lender because she could not afford the relocation costs. She had not sought assistance from the police or other authorities of Indonesia because she knew she was the one who did wrong. She was scared she would be sent to prison and she thought that the police would side with the money lender against her.
12. The money lender was still living in Braja Sakti Hamlet. Although the parents and siblings of A1 were also living there they had not been troubled by the money lender.
13. The Non-refoulement Claim Forms of A1 and A2 were dated 24 February 2015. A1 attended an interview with an officer of the Immigration Department and was assisted by her legal representative. Their non-refoulement claims were refused by the Director of Immigration by a Notice of Decision dated 17 April 2015. Their appeals/petitions to the Torture Claims Appeal Board/Non Refoulement Claims Petition Office (“the Appeal Board”) which were lodged on 29 April 2015 were rejected on 14 December 2016 after a hearing.
Conclusion
14. I have considered the evidence of the case and the decisions of the Director of Immigration and the Appeal Board. They have looked into all the available grounds of non-refoulement claims of the applicants and I do not find any error in law or procedure.
15. A1 submits in this application that the Appeal Board failed to carry out sufficient research and enquiries into the conditions of Indonesia and failed to have regard to the circumstances of A1 and A2, thus dismissing the appeal of the 2 applicants upon an unfair procedure.
16. A1 also complains that the Appeal Board failed to evaluate and make a finding of whether there existed a consistent pattern of gross, flagrant or mass violation of human rights in Indonesia and wrongly applied the law and standard of proof in determination of the appeals of A1 and A2.
17. The complaints of the 2 applicants are totally unfounded. Their non-refoulement claims and all the issues raised have been fully and fairly considered by the Immigration Department and the Appeal Board in accordance with the law and legal porocedure.
18. There are no reasonably arguable grounds to support the intended judicial review and there is no realistic prospect of success. Leave to apply for judicial review is refused.
Dated the 23rd day of March 2018.
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(Kenneth TSANG) |
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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 his 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);
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Sent to the Applicant
on 23/3/2018
Ms Lili Lestari and Miss Edi Subagio Meilani Subagio
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 23/3/2018
Torture Claims Appeal Board,
Director of Immigration
(Putative Respondents)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
Respondent’s ref. no.:
Torture Claims Appeal Board Ref.: USM 1453/15/4/145/I58 & USM 1454/15/4/146/I59
Immigration Department Ref.: QA T/C 1346/14 (formerly RBCZ /3000537/14) &
QA T/C 1347/14 (formerly RBCZ/3227/14) |
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
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| 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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Form CALL-1
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