SITI PATIMAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1898/2019

[2024] HKCFI 2412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1898 OF 2019

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BETWEEN

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J U D G M E N T

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The application

1.  The 1^st applicant applied to join her daughter as the 2^nd applicant and the Court granted leave accordingly.

2.  The 1^st applicant, aged 41 is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 8.

3.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 7 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant. Their application is late. The application should not be later than 3 months from the date of the Board’s Decision[1], which expires on 7 April 2019. Their application was filed on 8 July 2019. It is therefore late for about 3 months. I shall deal with this issue below.

4.  The applicants appeared before the Court on 21 August 2024.

5.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants

6.  The 1^st applicant, aged 41, is an Indonesian. She last arrived in Hong Kong on 23 August 2014 and was granted permission to remain as a foreign domestic helper (“FDH”) with a limit of stay until 1 February 2015. Yet, it was subsequently discovered that the 1^st applicant’s employment contract had in fact been prematurely terminated on 31 July 2014. The 1^st applicant was arrested by the police on 26 April 2016 for making false representation to the Immigration Department and breach of condition of stay. She was sentenced to imprisonment of 9 months and 2 weeks on 10 May 2016. The 1^st applicant gave birth to the 2^nd applicant on 29 June 2016. She made a non-refoulement claim on 13 February 2017 for herself and on 27 February 2017 for herself and on behalf of the 2^nd applicant. The claim was made on the basis that, if refouled, the 1^st and 2^nd applicants would be harmed or even killed by the 1^st applicant’s husband (“Kamandi”) the loan sharks and a Firman Ali. Furthermore, the 2^nd applicant would also be discriminated because of her mixed ethnicity.

7.  According to the 1^st applicant, Kamandi took out a loan from a private bank in around 2003 to startup a property agency business with his friends. The loan was taken out under the name of Kamandi and the 1^st applicant, with the latter’s family farmland used as collateral. The business started to deteriorate in around 2004, so the 1^st applicant approached an employment agency in 2005, which arranged her overseas employment in Hong Kong. In 2009, the 1^st applicant returned to Indonesia and married Kamandi. In the meantime, as the agency business continued to deteriorate, Kamandi could no longer afford paying monthly instalments. Given the default in payment, loan sharks started going to their home demanding repayment and intimidated them from time to time.

8.  The 1^st applicant gave birth to her daughter on 10 September 2009 and later returned to Hong Kong to work as a FDH. Subsequently, the 1^st applicant’s relationship with Kamandi started to deteriorate and she stopped sending money back to him in 2012 because she suspected that he did not use the money to settle the loan, but spent it on other women. In 2012, Kamandi informed her that he had stolen some money from their friend, Firman Ali. Thereafter, he left the home village because Firman Ali had reported the case to the police.

9.  The 1^st applicant returned to Indonesia in 2014 when her employment contract ended. She was sick. having arguments with Kamandi on loan related matters, so she returned to Hong Kong on 23 August 2014 via a visitor visa. During her stay in Indonesia, Firman Ali had approached her two times and had verbally threatened her to settle her loan, which she had borrowed from him to settle Kamandi’s debt.

10.  The 1^st applicant maintained contact with her parents and was informed that Kamandi had threatened to torture her because he believed that she had money but was withholding it from him. The 1^st applicant also feared that Kamandi might hurt her if he discovered that she had a child with another man. Meanwhile, loan sharks and Firman Ali were also seeking for the whereabouts of the 1^st applicant and Kamandi.

11.  The 1^st applicant did not make a report to the police because the matter concerned was a loan dispute. The 1^st applicant considered internal relocation not viable because she had no friends/relatives elsewhere in Indonesia and that she could not afford moving elsewhere. She also worried that the 2^nd applicant would face discrimination in Indonesia because she had a Pakistani father and hence was of mixed ethnicity.

12.  Details of the 1^st applicant’s story can be found in paragraph 7 of the Director’s Decision dated 23 January 2018 (“the Director’s Decision”).

The Director’s Decision

13.  The Director considered the 1^st and 2^nd applicants’ claim in relation to the following risks:

(a) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

(d) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

14.  By way of the Director’s Decision, the Director dismissed the 1^st and 2^nd applicants’ claim. The Director found that (i) the low intensity and frequency of past ill-treatment from Kamandi, the loan sharks and Firman Ali indicated that their risk of harm was not as imminent as claimed [14]-[17]; (ii) the claimed discrimination against the 2^nd applicant was a mere speculation with no evidence in support [19]; (iii) state protection would be available [21]-[27]; (iv) internal relocation would be viable [18], [28]-[29] and (v) the 1^st and 2^nd applicants’ case failed to meet any of the requirements under BOR 2 and BOR 3 risk [30]-[35], Persecution risk [36]-[40] or Torture risk [41]-[43].

The Board’s Decision

15.  The 1^st and 2^nd applicants appealed the Director’s Decision to the Board. On 27 August 2018, the Board conducted an oral hearing.

16.  During the hearing, the 1^st applicant showed limited knowledge towards the property agency business, in which she claimed that she did not work in the business, but merely invested in it [46]. The 1^st applicant also claimed for the first time that she and Kamandi had a house, which was seized by the bank. Despite the seizing of the house, the debt had not been settled because the interest was very high [50]-[51]. As to her fear from Firman Ali, the 1^st applicant failed to mention it initially in the hearing and had to be prompted before disclosing details in relation to this claim [58].

17.  The Board considered that the 1^st applicant was not a witness of truth [67]. In relation to the loan taken out by Kamandi in 2003, the evidence was vague, limited and confused [68]. Although a wife is liable for the debts incurred by her husband prior to or during marriage under Indonesian law [69], the Board noted that the 1^st applicant was inconsistent as to the commencement date of the agency business and could only provide little details about it [70]. In any event, given the elapse of time since the loan default, the fact that the bank has seized major assets and that both the 1^st applicant and Kamandi had left their hometown, the Board found it reasonable to assume that the remainder of the loan, if any, had been written off as a bad debt due to the limited prospect of recovery [71].

18.  Regarding the 1^st applicant’s fear from Firman Ali, the Board gained the impression that the fear was from money lenders in general, but not from Firman Ali in particular. The Board considered the risk of harm from Firman Ali low and that the 1^st applicant could resort to state protection anyway if necessary [75].

19.  In regard to the 1^st applicant’s fear from her husband, the Board noted from the country of origin information (“COI”) that there were measures against domestic violence in Indonesia which could provide adequate protection to her if she required it [76]-[82]. As to the feared discrimination for the 1^st applicant as a single mother and the 2^nd applicant as a child born out of wedlock, COI indicated that there were support services provided by both government and non-government organisations, which the 1^st and 2^nd applicants could access. There were also particular measures to help repatriated workers and their children [83]-[101].

20.  Based on such findings, the Board concluded that the 1^st and 2^nd applicants’ case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [11]-[30], [102]-[119]. The 1^st and 2^nd applicants’ appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

21.  The applicants filed Form 86 on 8 July 2019 for leave to apply for judicial review of the Board’s Decision.

22.  In the affirmation in support of the application, the 1^st applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

23.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

24.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

25.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. I asked the 1^st applicant what child specific issues that she wanted to raise for my consideration as they were not represented before the Board. The 1^st applicant said that she wanted her daughter to finish her study in Hong Kong.

26.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

27.  For the reasons given above, the Board did not accept the 1^st applicant’s evidence on the facts of her case. In any event, state protection is available to her if she returns to Indonesia. As to her daughter, the Board had separate consideration for her and it rejected the 1^st applicant’s allegation that she will be discriminated in Indonesia. The Board further considered that the government and non-government agencies in Indonesia will give the mother and the daughter support and assistance if they return to Indonesia.

28.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it. Before this Court, the 1^st applicant only said that she wanted her daughter to finish her study in Hong Kong, which is not a valid reason to refute the Boards’ findings of the fact.

29.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review of the Board’s Decision.

DISPOSITION

30.  I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

31.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rending the 2^nd applicant’s a nullity.