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HCAL 935/2018 & HCAL 618/2020
[2021] HKCFI 610
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
No 935 of 2018 and 618 of 2020
BETWEEN
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Sumiyati |
1st Applicant |
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Sumiyati Natasha Salsabila Nadhifa |
2nd 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 |
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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. Extension of time for the respective applications for leave to apply for Judicial Review in HCAL 935/2018 and HCAL 618/2020 be refused; and
2. The respective applications for leave to apply for Judicial Review in HCAL 935/2018 and HCAL 618/2020 be dismissed.
Observations for the Applicants:
1. The 1st applicant filed her non-refoulement claim on 10/6/2016 and 13/6/2016. Her claim was rejected by the Director on 19/1/2017. Her appeal was dismissed by the TCAB on 16/1/2018. She filed the leave application on 25/5/2018 (HCAL 935/2018). The leave application was about 5 weeks out of time.
2. Before the decision of the TCAB, the 1st applicant gave birth to the 2nd applicant on 31/12/2017. Subsequently, the 1st applicant filed a non-refoulement claim on behalf of the 2nd applicant on 10/1/2019. The Director dismissed the 2nd applicant’s claim on 15/5/2019. Her appeal was dismissed by the TCAB on 26/9/2019. The 2nd applicant filed the leave application on 14/4/2020 (HCAL 618/2020) [1]. The leave application was about 3½ months out of time.
3. On 9/6/2020, DHCJ Lung ordered that the two leave applications should be heard together.
Background
4. The 1st applicant was born on 11/4/1982 in Brenggolo village, East Java, Indonesia. Her parents and other siblings were in Indonesia. She had education for 11 years. She was a Muslim. Her siblings and parents lived in Indonesia. She got married in 2003. She was a domestic worker in Hong Kong.[2]
5. She first came to Hong Kong on 20/7/2010 under a domestic helper contract. She returned to Indonesia by the end of 2012. She last came to Hong Kong on 12/6/2015 under another domestic helper contract. Her contract was terminated and she overstayed until 24/5/2016 when she was arrested. She lodged the non-refoulement claim on 10/6/2016.[3]
6. The 1st applicant got married in March 2003 and lived with her in-laws. After she gave birth to twin daughters, her husband started to indulge in drinking and gambling. She was beaten by him 2—3 times a week when he was drunk. She did not seek medical treatment on the bruises. She was too embarrassed to report to the police. She believed the police would not help as her husband had a police friend.
7. In 2005, she gave birth to a son. One day, she had a fight with her husband who locked her and the kids up in a room for a few hours. Her husband threatened to kill her with a knife if she told anyone about the incident or leave the house.
8. In 2008, she operated a stall but the business was not good. She then thought of getting employment overseas.
9. She finally departed for Hong Kong in July 2010. However, her contract was terminated at the end of 2012. She returned to Indonesia and lived her husband and in-laws. Her husband told her that he had borrowed a loan of 10 million Rupiah [4]. She was the guarantor but he could not produce any loan document. Her husband beat her with a wooden rod as she refused to repay the loan. She did not report to the police.
10. In January 2013, she came to Hong Kong again under a domestic helper contract until February 2015. She returned to Indonesia and stayed with her husband and in-laws for 4 months. During that time, her husband kept on demanding money. He even claimed to have sold the house. He could not repay the debt. He even poured hot coffee on her head. She was not injured.
11. One day, they had an argument again about money. Her husband splashed oil on her foot causing burn and blisters. She was taken to a mid-wife nearby. She was treated with ointment and oral medication. Later her husband bought her some ointment. The injury healed in about 1 month. She did not go to any hospital. She did not report to the police.
12. After this incident, she wanted to stay away from her husband. She demanded a divorce but her husband refused. Her husband knew the person-in-charge of the Marriage Registry. It was difficult for her to get a divorce.
13. She came to Hong Kong again on 12/6/2015. She quitted the job in September 2015. She was unable to find another employer. She was arrested for overstaying on 24/5/2016. She had not filed any non-refoulement claim in the past. She knew that she would not be sent back if she was employed in Hong Kong.
14. She last contacted her husband in December 2015 by phone. He kept on asking for money which she refused. He threatened to kill her.
15. She was not targeted by the Indonesian authorities. She had not sought assistance from the police. She could not relocate to Malang or Surabaya. She had no connections in those cities. Her husband would be able to locate her as he got police friends.
The non-refoulement claim of the 1st applicant (HCAL 935/2018)
16. The Director found that the risk of harm was low for the following reasons:[5]
(a) Although there was constant assault by her husband for a period of years, her injuries did not reach ‘a minimum level of severity’. On the occasion when hot oil was splashed on her foot in 2015, her husband even bought ointment to treat her burn. The overall evidence did not support the allegation that her husband wanted to kill her.
(b) The marital relationship was a private matter. There was no evidence of any State involvement. She had no difficulty with the Indonesian government in the past.
(c) She did not seek police assistance in Indonesia. There was no evidence that the police would not investigate because of her husband’s connection.
(d) The Director accepted that there was corruption in Indonesia, however, there was on-going improvement in Indonesia to improve police efficiency and to monitor their conduct. There were organizations which assist in the protection of women and children in Indonesia. The Director found there was sufficient State protection.
(e) Indonesia was a large country with big population. Relocation was permitted. The applicant might move to other cities like Malang or Surabaya. The Director concluded that it was not unduly harsh for the 1st applicant to relocate and avoid the threats.
17. The Director dismissed the non-refoulement claim on all grounds.
Decision of the TCAB
18. The 1st applicant attended the hearing fixed on 4/12/2017. The adjudicator considered her oral evidence and other material in the appeal bundle. The adjudicator rejected her claim on 16/1/2018.
19. The adjudicator pointed out the following findings:
(a) The 1st applicant was unable to recall essential factual basis of her claim. These include the amount of the loan and the time of her pregnancy. The adjudicator did not accept that it was due to absent mindedness or low level of education.[6]
(b) The 1st applicant’s family had been living within their means despite her husband’s drinking habit. The loan raised in 2012 seemed out of character for the husband. There was no evidence that the creditors would harm her husband. He lived with the family all along. The applicant’s monthly earnings (HK$3,500) in Hong Kong should be sufficient to repay the loan (HK$5,500) after she started work in Hong Kong in 2013.[7]
(c) The 1st applicant showed no emotion in recounting incidents of domestic violence. She was vague too. About the incident of being locked up in a room in 2005, she did not recall if she was pregnant or already had kids with her.[8]
(d) As to the incident of splashing hot oil in 2015, the 1st applicant could not recall most of the details, the cause of the argument and how oil was splashed onto her. In the hearing, she even forgot about the ointment given by the mid-wife prior to her husband buying another effective ointment for her.[9]
(e) Despite the persistent domestic violence throughout those years, the applicant had not sought any assistance from the police or her parents. It seemed that she had taken no action to cope.
(f) The applicant chose to return to live with her husband in 2013 and 2015 after the end of her employment contracts in Hong Kong. This was inconsistent with her fear of harm and the constant harassment by phone from her husband as she alleged. The adjudicator did not accept returning to a violent husband was a better option than to her stern father [10]. In fact, she could have stayed in Hong Kong albeit unlawfully as she finally did in September 2015.[11]
20. The adjudicator found that the applicant did not present herself as someone who feared returning to Indonesia and someone who did not leave her country out of fear. The adjudicator rejected the factual basis of the applicant’s claim. The adjudicator concluded that it was financial need alone that caused her to come to Hong Kong. There was no future harm if she returned to Indonesia.[12]
21. The adjudicator dismissed the appeal. She concluded that the non-refoulement claim was not established on all grounds.
The non-refoulement claim of the 2nd applicant (HCAL 618/2020)
22. The 2nd applicant was born on 31/12/2017 in Hong Kong. Her biological father left her mother (‘1st applicant’) before she was born. She relied on the factual basis of her mother’s non-refoulement claim. The 2nd applicant feared that her mother’s ex-husband, as well as her grandfather [13], would be hostile to her being born of an extra-marital relationship. Both men were devout Muslims.
23. The 1st applicant attended the screening interview before the Director on behalf of the 2nd applicant. She revealed that she had separated from her ex-husband according to Islamic rules but they were not formally divorced according to the law of Indonesia. However, she heard that he was still looking for her. She was not aware of government authorities or NGO providing shelters for victims of domestic violence. She was not aware of anti-corruption commission in Indonesia. [14]
24. The Director dismissed the 2nd applicant’s claim on the following reasons:
(a) She had never met her mother’s ex-husband. She had not met her grandfather either[15]. The fear because of her illegitimacy was only the speculation of her mother.
(b) Despite the domestic violence, the evidence did not support that her mother’s ex-husband had any intention to kill.
(c) No one knew that she was illegitimate except her grandmother[16]. At most, the fear of ill-treatment was within the family. She would not be targeted by other people because of her illegitimacy.
(d) There was reasonable State protection in Indonesia. There were service centres providing psychological and support services for women and children of domestic violence. They were operated by the government and NGO. The Indonesian government had improved support services and police awareness to tackle problems of domestic violence.
(e) Internal relocation was viable to Jakarta, Medan or Malang. There were NGO providing services to victims of domestic violence.
Decision of the TCAB
25. The 2nd applicant lodged an appeal through her mother. A hearing was held on 7/8/2019 before a different adjudicator. Having considered the relevant oral evidence from her mother and the documents in the appeal bundle, the adjudicator dismissed the appeal. The reasons were as follows:
(a) According to her mother, her ex-husband had pronounced the end of the marriage according to Islamic rules about 2010 before her mother first came to Hong Kong. This conduct clearly demonstrated that he no longer regarded himself in a marital relationship with her mother.[17]
(b) In the oral hearing, her mother was vague and inconsistent in recalling the details of the loan (10 million Rupiah), in particular, the deadline for repayment and whether any repayment made. Her mother’s ex-husband would not have delayed until 2013 to inform her mother about the loan if it was for supporting the family in Indonesia [18]. It was also implausible that the loan shark had not taken action against her mother’s ex-husband throughout those years.[19]
(c) Her mother lived with her ex-husband when she returned to Indonesia in 2015. Her mother explained in the oral hearing that it was due to pressure from her grandmother. This was never mentioned earlier. Her mother was also inconsistent as to the assault by her ex-husband during this period. She left out incidents of pouring coffee and splashing oil onto her. [20]
(d) In the oral hearing, her mother indicated that she wanted to reconcile with her ex-husband when she returned to live with him in 2015. This was inconsistent with her demand for a formal divorce earlier. This intention to reconcile was never mentioned earlier.[21]
26. Given the inconsistent evidence above, the adjudicator found that her mother had lost contact with her ex-husband latest by December 2015. As disclosed by her mother, her ex-husband had a relationship with another woman. The adjudicator concluded that the ex-husband had no further interest in her mother. Given the background, the adjudicator was not satisfied that the ex-husband would be motivated to harm either of them.[22]
27. According to her mother, her grandfather was a devout Muslim. He would harm or kill both of them because of the extra marital affair. However, her mother was pregnant before she got married in 2003. Her grandfather was tolerant about the pre-marriage affair then. This was inconsistent with the ‘devout Muslim allegation’. In fact, honor killing was unknown in Indonesia. The adjudicator did not accept that there was real risk of harm from her grandfather. [23]
28. Her biological father had refused to support her mother. They had seldom contact. The adjudicator rejected the possibility that he would travel to Indonesia to harm both of them. [24]
29. The adjudicator concluded that there was no real risk of harm if she returned to Indonesia.
30. While the issue of relocation did not arise, the adjudicator opined that given her mother’s background, the improvement of social services in Indonesia, both of them would be able to obtain assistance from NGO like PEKKA and the Red Cross. It would not be unduly harsh for them to relocate to Jakarta or Surabaya.[25]
Judicial review
31. Both applicants applied for leave for judicial review of the respective TCAB decisions on 25/5/2018 and 14/4/2020. The 1st applicant was about 5 weeks out of time. The 2nd applicant was about 3½ months out of time. Both applicants should have applied for extension of time for the leave applications.
32. The 1st applicant only indicated in the affirmation that she disagreed with the decisions. There was no explanation of the delay.
33. On 9/11/2020, the 1st applicant filed a written submission to this court. She complained that there were procedural errors. She had difficulties preparing for the appeal as the bundle was in English. She had no interpretation services. She did not understand the hearing before the TCAB. The COI relied on by the TCAB were not official and updated. They consisted of hearsay.
34. An oral hearing was held on 29/12/2020 upon the request of the 1st applicant. She had nothing further to update.
35. The decision of the Director must have been translated to the 1st applicant by the DLS. The other documents such as the NCF was compiled with the assistance of the DLS. As to the record of the interview before the Director, the interview was conducted with the assistance of an interpreter. The 1st applicant should have a reasonable understanding of the content of all these documents in the appeal bundle in both cases. The written submission dated 9/11/2020 was written in English. This showed that the 1st applicant could have language assistance from other sources. In my view, there was no unfairness arising from language.
36. As for the COI, the adjudicator had considered the COI set out in the appendix of the Director’s decision. The adjudicator had also set out the additional websites she referred to in the footnotes. They were from reliable sources. The 1st applicant could have counterchecked if there was any query. In fact, the 1st applicant did not specify any error or changes.
37. During the hearing before the TCAB, the 1st applicant was assisted by an interpreter. There was no record that she did not understand the proceedings or any other complaint. On the contrary, she indicated that she answered questions honestly.
38. In relation to the leave application of the 1st applicant (HCAL 935/2018), there is no error of law and procedure. I agree with the adjudicator. Her evidence was not credible. I also find the decision reasonable.
39. In relation to the leave application of the 2nd applicant (HCAL 618/2020), there is no error of law and procedure. The adjudicator had considered the claim separately. She was aware of the relocation difficulties specific to the 2nd applicant and concluded that there were sufficient facilities to assist the 2nd applicant and her mother. I agree with her findings. The decision of the TCAB was reasonable.
40. Both applicants did not apply for leave within 3 months as required, both of them did not provide any explanation for the delay. In considering whether there is good reason for the delay, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [26]
41. In my view there is no merit in both applications. There was no good reason for the delay.
Conclusion
42. In my judgment, there is no good reason for extending the time for both leave applications. I refuse leave for judicial review in both applications.
Dated the 11th of March 2021.
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(Mike MAK)
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 11 March 2021
Sumiyati
(1st Applicant)
Sumiyati Natasha Salsabila Nadhifa
(2nd Applicant)
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 11 March 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5992/17/1/276/I600; and
USM 15939/19/5/79/I1693;
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2954/16
(formerly RBCZ 12113/16); and
QA T/C 173/19
(formerly RBCZ 10109/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] By the 1st applicant.
[2] From July 2010—end of 2012 & June—September 2015.
[3] The subject matter of the leave application in HCAL 935/2018.
[4] It was about HK $5,500.
[5] The decision of the Director dated 19/1/2017, §§9—40.
[6] The decision of the TCAB dated16/1/2018, §§55—56, 98, 115, 126.
[7] The decision of the TCAB dated16/1/2018, §§127—129.
[8] The decision of the TCAB dated16/1/2018, §§132—133.
[9] The decision of the TCAB dated16/1/2018, §§135—136.
[10] According to the 1st applicant, she had arguments with her father frequently when growing up.
[11] The decision of the TCAB dated16/1/2018, §§137—141.
[12] The decision of the TCAB dated16/1/2018, §§142—148.
[13] Her mother’s father.
[14] The decision of the Director dated 15/5/2019, §§7.40—7.44.
[15] The father of the 1st applicant.
[16] The mother of the 1st applicant.
[17] The decision of the TCAB dated 26/9/2019, §35.
[18] Her mother alleged that she remitted most of her income back to Indonesia for her family.
[19] The decision of the TCAB dated 26/9/2019, §§36—37.
[20] The decision of the TCAB dated 26/9/2019, §§38—39.
[21] The decision of the TCAB dated 26/9/2019, §40.
[22] The decision of the TCAB dated 26/9/2019, §§41—43.
[23] The decision of the TCAB dated 26/9/2019, §§44—45.
[24] The decision of the TCAB dated 26/9/2019, §47.
[25] The decision of the TCAB dated 26/9/2019, §54—57.
[26]
H v Director of Immigration [2020] HKCFA 22, para 37.
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