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HCAL 648/2019
[2022] HKCFI 300
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 648 of 2019
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Rinawati |
1st Applicant |
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Rinawati Komal Preet Kour |
2nd Applicant |
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Torture Claims Appeal Board / |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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:
1. Application to add the 2nd applicant to the Form 86 be granted;
2. Extension of time for application for leave to apply for Judicial Review be refused;
3. Application for leave to apply for Judicial Review be dismissed for 1st to 2nd Applicants.
Observations for the Applicants:
1. The 1st applicant (A1) last came to Hong Kong from Macau on 19/8/2014 as a domestic helper. She overstayed after her visa expired on 30/10/2015. She gave birth to the 2nd applicant (A2) on 19/12/2016. She was arrested by the police on 21/12/2016. She raised the non-refoulement claim in this case for herself and her daughter on 17/3/2017.
2. The non-refoulement claim for A1—A2 was dismissed by the Director on 23/3/2018. Their appeal was dismissed by the TCAB on 6/12/2018. She filed the leave application on 7/3/2019 for herself only. She was one day out of time.
Background
3. A1 was born on 17/10/1982 in Provinsi Lampung, Indonesia [1]. She had education for 9 years. She was single. She was a domestic helper for 12 years in Indonesia, Malaysia and Hong Kong. Her daughter (A2) was born in Hong Kong in 2016. Her daughter was of Indonesian nationality. She and her family had not joined any organization or group. She had not been charged or imprisoned in Indonesia.
4. In 2006, she borrowed a loan from a loan shark. The monthly interest rate was 20%. She could not recalled the amount of the loan but it should have been accumulated to more than 100 million IR.[2] She had signed a loan agreement to remit money from Hong Kong for repayment.
5. Eventually, she did not repay the loan. She used up her salary for the agency fee and the medical expenses of her parents. Since 2007, the loan shark kept on threatening her on the phone. Her parents told her that the loan shark came to threaten them also. However, they were not attacked. She did not return to Indonesia but stayed in Macau or China even after her contract expired.
6. In 2014, she returned to Indonesia for 3 weeks to visit her parents who were sick. The loan shark did not discover that.
7. Her contract was terminated in the end of 2015. She stopped all contacts with her parents. She only raised her claim in 2017 after she was arrested because she was afraid.
8. She believed her life would be in danger if refouled. Her family would not accept her and her daughter. She would be expelled from the home village. The authorities would not help as it was a private matter. She had no resources to relocate. She had no skill to earn a living in Jakarta.
The Decision of the Director in relation to A1—A2
9. The Director found that there was no real risk that A1—A2 would be harmed or killed by the loan shark for the following reasons:
(a) The loan shark had never harmed A1 or her parents in Indonesia. There was only verbal threat to her parents. A1 was able to return to Indonesia for 3 weeks in 2014. The loan shark was not aware of it. There was no evidence that both A1 and A2 would be in danger if they returned to Indonesia.
(b) There was no evidence that the loan shark had taken any action to trace her. There was no evidence that the loan shark had the resources to locate A1 and A2 elsewhere in Indonesia.
(c) A1 claimed that her family would not accept A2 being an illegitimate child. This was pure speculation. The birth of A2 had never been made known to her family. She had no contact with them.
(d) The loan was a private dispute. There was no evidence that any public official was involved. A1 had never sought assistance from the police. It was not the case that the Indonesian authorities failed to discharge their duties.
(e) The Director accepted that there was serious corruption and human rights abuses. Single mothers were rejected by the society. Illegitimate child might face discrimination although no risk of physical violence. However, there were practical measures by the government to protect its citizen. The KPK [3] had carried out investigations and prosecutions of corruption at all levels of the government. There were anti-corruption courts in all provinces. The National Ombudsman Commission and other bodies [4] were tasked to handle complaints from citizens on human rights abuses. There were NGO which provided integrated services and shelters for victims of domestic violence.[5] There were organizations providing counselling and literacy training to female heads of households.[6] The law had been amended to tackle violence against women and children. Women’s Help Desks were set up to deal with domestic violence. The Director concluded that there was reasonable State protection. There were avenues for A1 and A2 to seek assistance.
(f) The law in Indonesia allowed relocation. There were organizations to help women who encountered problems from domestic settings. Indonesia was about 1.9 million km 2 with a population of around 260 million. A1 might move to other cities like Jakarta and Surabaya. The Director concluded that it was not unduly harsh for A1 to relocate. A1—A2 could seek assistance from various NGO.
10. On 23/3/2018, the Director rejected the claims of A1and A2 on all grounds.
The Decision of TCAB on the appeal of A1—A2
11. A hearing was fixed on 9/10/2018. A1 gave evidence. The adjudicator rejected the appeal of both applicants on 6/12/2018.
12. The adjudicator found that A1 was inconsistent in various aspects. A1 was not credible. The adjudicator made the following findings:
(a) A1 was unable to recall the amount of the loan raised in 2006. This was central to her claim. It was implausible that she was unable to recall.
(b) A1 told the adjudicator that there was no detail term in the loan agreement. It was not in writing. She only recalled a monthly interest rate of 20 %. There was no timetable for repayment. However, in her NCF, she stated that she promised to remit her salary after the first 7 months. There was a written agreement but she did not have a copy.
(c) A1 could not tell the adjudicator the name of the loan shark. The name of the friend who introduced her to the loan shark. She knew very little about the loan shark.
(d) A1 was unable to tell the adjudicator about the medical conditions of her parents. She only mentioned that her mother had a problem with her leg and almost could not walk. She did not know how long her father suffered from asthma. This was implausible as she claimed to have paid huge medical expenses for her parents.
(e) A1 told the adjudicator that when she first told the loan shark in 2007 she could not repay, the loan shark said he could wait. He did not set any time limit for repayment. The adjudicator found this unbelievable.
(f) A1 told the adjudicator that she changed her phone number many times to avoid the loan shark. She could not explain changing her number only in 2015 whereas the threat started in 2007. She could not explain why she need to change her number many times. The adjudicator opined that she concocted her evidence.
(g) She went back to Indonesia to visit her parents in 2014. They were both sick. However, she was unable to elaborate on their medical conditions. The adjudicator found this unacceptable given that she dared not return home even after her contract expired in the past.
13. The adjudicator rejected A1’s evidence totally. There was no loan raised with a loan shark. There was no threat. The adjudicator concluded that both applicants were not in real risk of harm if refouled.
14. The adjudicator pointed that A1 had not informed her parents about the birth of A2. In fact, she had not contacted her parents since 2015. The fear that her parents would reject A2 was pure speculation. However, the adjudicator accepted that both applicants would face some discrimination being a single mother and an illegitimate child. The adjudicator did not accept this would constitute any real risk of harm in the context of non-refoulement protection.
15. After considering some COI, the adjudicator concluded that there were some social services available to assist single mothers, such as, the Women’s Empowerment and Child Protection Ministry and PEKKA[7]. These organizations provide financial support, psychological support, business and literacy training to single mothers.
16. A1 told the adjudicator that she had regain contact with A2’s father who promised to support them financially. The adjudicator concluded that there was no real risk of harm for both applicants.
Judicial Review
17. A1 filed the leave application on 7/3/2019. In her affirmation, she did not specify any error in the TCAB decision. She was one day out of time.
18. A1 wrote to this court on 19/3/2021, she complained that the TCAB was unfair. She had answered questions honestly but was found not credible. The TCAB relied on news reports which were not official. She could not fully understand the TCAB decision.
19. A1 attended a hearing on 8/11/2021 before this court. She had no more update. She had no complaint. She could not recall the reason for the delay. She applied to add A2 to the Form 86.
20. In relation to adding A2 to the Form 86, I am aware of the requirement under Order 15 rule 6(5) that no person shall be added as a party after the expiry of any limitation period. However, given that the delay was only one day and that it would be in the interest of both applicants for their claims to be dealt with together, I exercise the discretion to allow the amendment by adding A2 to the Form 86.[8]
21. The applicants were out of time in filing the leave application by one day. The applicants should have applied for extension of time. They did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted. [9]
22. In a case involving minors, it is important that the adjudicator considers the claim of the minors separately. The dismissal of the claim of a parent does not necessarily follow that the child’s claim would be dismissed. Further consideration of the personal situations of the child is always necessary.[10]
23. In the TCAB decision, the nationality of A2 was not in issue [11]. The adjudicator found A1 not truthful. She rejected the evidence of A1. She concluded that there was no threat from any loan shark. I agree with this conclusion.
24. A2 was born in Hong Kong. She had never met A1’s family. Given that A2’s claim was premised entirely on A1’s claim, she could not give any evidence in relation to the threats or the surrounding circumstances.
25. The adjudicator had considered the possible discrimination against both applicants. She concluded that there were institutions which could provide integrated services to both applicants. She concluded that this possible discrimination would not amount to any risk of harm in the context of non-refoulement protection. I agree with her conclusion.
26. In my view, there was no issue specific to A2 which had not been advanced or considered by the TCAB because of lack of legal representation. I shall treat the absence of legal representation for A2 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.[12]
27. As to the complaints by A1 in her letter dated 19/3/2021, I do not find any unfairness in the TCAB proceedings. A1 was given ample opportunities to answer questions. She was assisted by an interpreter. The adjudicator did not rely on any news reports. She actually found A1’s evidence implausible. I do not see any substance in A1’s complaint.
28. There is no error of law and procedure in the TCAB decision. It is reasonable. There is no merit in the intended judicial review.
Conclusion
29. There is no good reason for extension of time for filing the leave application. I refuse to extend the time. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for the intended judicial review.
Dated the 26th day of January 2022.
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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 Applicants:
If leave has been granted, the Applicants or the Applicants’ 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 Applicants 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 Applicants
on 26 January 2022
Rinawati
(1st Applicant)
Rinawati Komal Preet Kour
(2nd Applicant)
Applicants’ 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 26 January 2022
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10984/18/3/436/I1221; and
USM 10985/18/3/437/I1222
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3415 to 3416/17
(formerly RBCZ 10843 to 10844/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Desa Karanganyar, Kecamatan Padang Ratu, Kabupaten, Lampung Tengah.
[2] Indonesian Rupiah.
[3] Corruption Eradication Commission.
[4] National Commission on Violence against Women, National Commission of Human Rights.
[5] P2TPA, PEKKA, UN Development Fund for Women and LBH APIK.
[6] PEKKA, Rifka Annisa and Mitra Perempuan.
[7] Women-Headed Households Empowerment Program.
[8] Order 2 rule 1(1).
[9] H v Director of Immigration [2020] HKCFA 22, para. 37; AW v Director of Immigration CACV 63/2015, §§26—27.
[10] Fabio Arlyn Timogan and Others v. Director of Immigration [2020] HKCA 971, §§33-35
[11] This is consistent with ‘The law on citizenship of the Republic of Indonesia 2006’, Art. 4(7). It would not be a minor specific issue.
[12] Re Jasvir Singh and Others [2021] HKCA 53, per Au JA at §§36—38
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