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HCAL 491/2019
[2021] HKCFI 1019
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 491 of 2019
BETWEEN
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Nur Inayah |
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 born on 12/12/1984 in Purwosari village, Central Java, Indonesia[1]. Her parents and younger sister were in Indonesia. She had education for 9 years. She was a domestic worker in Malaysia (2006-2008), Singapore (2008-2010) and Hong Kong (2010-2015). She was single.
2. She came to Hong Kong on 4/10/2017 as a domestic helper under a 2-year-contract. She was arrested by Immigration Officers for taking up unapproved employment. She was sentenced to imprisonment for 4 months.[2] She lodged the non-refoulement claim in this case in July 2018.
Background
3. In late 2017, her parents called her while she was in Hong Kong. They informed her that they had borrowed a loan of 180 million Rupiah [3] from a loan shark. They could not repay by the deadline in January 2018. They had agreed that the applicant would marry the loan shark as an alternative for settling the loan when she returned to Indonesia. The applicant did not know anything about the loan shark.
4. A few days later, she talked to the loan shark on the phone. She asked for an extension of the deadline but the loan shark refused. He threatened to kill her if she refused to marry him. She changed her phone number to stop any contact from her parents and the loan shark since the end of 2017.
5. She believed the situation remained the same. However, she had no updated information about her parents, the loan and the loan shark.
6. She thought the police would not help as this was a personal matter. The police would not assist an ordinary woman like her. She did not feel safe in Jakarta or Surabaya. She had no relatives or friends who could offer a shelter elsewhere in Indonesia.[4]
7. She refused to marry the loan shark as an alternative for settling her parents’ loan. She feared that her parents might force her to marry the loan shark. She was in fear that the loan shark would harm or kill her if she returned to Indonesia.
The Decision of the Director
8. The Director found that there was no substantial ground to believe there was a real risk that she would be harmed or killed by the loan shark or her parents for the following reasons:[5]
(a) The applicant was never physically harmed by the loan shark. She was only threatened by the loan shark on the phone. There was nothing to support that the loan shark would carry out the threat.
(b) It was a private matter. There was no evidence that any public official was involved.
(c) She knew very little about the background of the loan shark. It was her speculation that he was powerful and influential.
(d) She had no contact with her parents and the loan shark from the end of 2017.
(e) There was no evidence that her parents and the loan shark had the power and resources to locate her all over Indonesia.
(f) The Director had considered various COI. While there was widespread corruption in Indonesia, there were practical measures to improve the situation. The Indonesian government had adopted measures to tackle corruption. The Corruption Eradication Commission (‘KPK’) carried out investigations and prosecutions in high profile cases. There were anti-corruption courts established. The Ombudsman Commission investigated misadministration of justice. There were measures to improve the performance of the police. The Director concluded that there was reasonable State protection.[6]
(g) There were government institutes and NGO providing services to victims of domestic violence. Legal aid, counselling and temporary shelters were available.
(h) Internal relocation was permissible under Indonesian Law. Indonesia was large and populated. It would be very difficult for the loan shark and her parents to locate her. In fact, Jakarta and Surabaya would be possible options for relocation. Given her background, it was not unduly harsh for her to relocate.[7]
9. The Director dismissed her claim on all grounds on 3/10/2018.[8]
The Decision of TCAB
10. The applicant attended the hearing fixed on 17/12/2018. The adjudicator rejected the claims on 9/1/2019.
11. The adjudicator pointed out the following important observations in the hearing:
(a) The applicant lived with her parents at the time when they raised the loan. It was about May 2017. However, she insisted that she was not aware of the loan. She did not know her parents had borrowed the loan to buy a plot of farmland. She did not know their reason for doing so. They might want to earn more money. She did not know the deadline for repayment was January 2018.
(b) The applicant admitted that in October 2017 she was contracted to work for a Mr. Chung in Hong Kong. However, she stayed with her friend elsewhere. She had never worked for Mr. Chung. She came to Hong Kong as she was tired of farming. She was eventually imprisoned for that.
12. The adjudicator found that the applicant was not credible for the following reasons:
(a) Her parents farmed on rented land all along before 2017. They decided to buy a plot of land towards the end of their working life. This was not credible.
(b) The applicant insisted that the weather was good to start a farming business. This was without basis. According to the research of the adjudicator, the loan was raised at a time not in accord with the usual planting and harvesting seasons in Central Java.[9]
(c) It was implausible that the applicant and her parents had not discussed about borrowing money to buy a plot of land. It was a huge loan. It was unbelievable that her parents had not discussed with her.
(d) It was implausible that there was no detail about the terms of the loan. It was not reasonable that the loan shark had not demanded any security for the loan. It was odd that the loan only lasted for 8 months from May 2017 to January 2018.
(e) The decision of the loan shark to take the applicant as his 3rd wife was unconvincing. The applicant was already 34 years old. She was a stranger to the loan shark.
(f) The adjudicator discounted her credibility for having misrepresented to the Immigration Department about her intention to work according to her employment contract.
(g) The adjudicator considered some COI which indicated that the production of tobacco crop in 2017 in Indonesia had increased by 129% because of good weather. This contradicted what the applicant asserted. Only a minority of farmers would farm tobacco as a major source of income.
13. The adjudicator did not accept there was any physical or mental sufferings to the requisite severity. There was no evidence of ill-treatment within the definition of s.37U of the Immigration Ordinance. There was no involvement of any public official. She had never reported to the police. Her assertion that the police would not assist was her speculation.
14. There was no risk that the applicant would be persecuted for any Convention reasons. There was reasonable State protection. It was not unduly harsh for her to relocate.
15. There was no evidence of arbitrary deprivation of life. The evidence did not amount to ill-treatment of ‘minimum level of severity’. There was no genuine and substantial risk of ill-treatment.
16. The adjudicator rejected her appeal on all grounds on 9/1/2019.
Judicial Review
17. The applicant applied for leave for judicial review of the decisions of the TCAB on 20/2/2019. The grounds set out in the Form 86 are inconsistent with the factual basis of the case. Apart from using ‘He’ to represent herself, she asserted the following (sic):
(a) The applicant feared that he would be sent back to his country where he faces risk to his life.
(b) Even if the adjudicator decides to not have oral hearing, they should at least invite him to submit written submissions and evidence.
(c) The applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the Director of Immigration.
(d) The TCAB has significantly relied on the source of news which is not officially recognised or it is simply hearsay…The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return to my country of origin.
18. In the affirmation in support, she basically repeated the above grounds. However, she no longer alleged that she was not given an oral hearing. In addition, she asserted that she had insufficient time to prepare as the appeal bundle was in English. It was only served upon her 6 days before the hearing including a weekend. She did not understand the procedures in the hearing. She answered questions honestly but was found not credible. The TCAB was unfair.
19. This court fixed a hearing on 26/1/2021 upon her request. She did not turn up. The notice of hearing was sent to her updated address.[10] There was no return of mail. This court decided to consider her leave application on paper.
20. The applicant alleged that she was not given an oral hearing in the Form 86. This is obviously untrue. The loan and the forced marriage were surprisingly not mentioned in those grounds. I have the impression that she adopted the grounds of another case perfunctorily. She did not even care to change the pronoun “He” and check the content.
21. The decision of the Director was sent to the DLS. It is normal practice that it would be translated to her. In any event, she should find language assistance on her own. There is no duty for the Director to provide interpretation at all stages of the application.
22. I accept that most documents in the appeal bundle are in English. In reality the most important documents are the decision of the Director, the NCF and the record of interview before the Director. The latter two were compiled with the assistance of an interpreter. The applicant should be able to understand the contents. In fact, during the hearing before the TCAB, the applicant confirmed the truth and correctness of all the evidence in the appeal bundle.[11]
23. The Form 86 and the affirmation are in English and typewritten. This show that the applicant was able to seek language assistance.
24. The COI considered by the Director and the TCAB were dated 2018. They were from authentic agencies such as the US Department of State, the CIA, the KPK and the Australian Government Refugee Review Tribunal. The news reports were from the New York Times, Transparency International and South China Morning Post etc. They are well established news agencies. In any event, the applicant was unable to point out the questionable aspects of those COI. General criticism could not have taken her case any further.
25. In my view, there is no error of law and procedure. Given the evidence submitted by the applicant, I find the decision of the TCAB reasonable.
Conclusion
26. In my judgment, this case is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 19th day of April 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 19 April 2021
Nur Inayah
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 19 April 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13850/18/10/192/I1500
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3679/18
(Formerly RBCZ 10699/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Sukorejo sub-district, Kendal Regency.
[2] She was sentenced on 8/6/2018 for offences including “making false representation to Immigration Officers”.
[3] About $97,000 HKD.
[4] Decision of the Director dated 3/10/2018, §§6—6.18.
[5] Decision of the Director dated 3/10/2018, §§13—15.
[6] Decision of the Director dated 3/10/2018, §§16—18.
[7] Decision of the Director dated 3/10/2018, §§19—21.
[8] Decision of the Director dated 3/10/2018, §§22—35.
[9] Planting between October to March. Harvesting between February to June.
[10] She updated her address on 14/9/2020 with this court.
[11] Decision of TCAB dated 9/1/2019, §31.
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