Ms. Nila Wati Pujiningsih & Daughter v. Torture Claims Appeal Board and Another

Case No.HCAL 316/2017[2018] HKCFI 110

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL316/2017
[2018] HKCFI 110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 316 of 2017

BETWEEN

	Ms. Nila Wati Pujiningsih & daughter	Applicant
	And
	Torture Claims Appeal Board	1st Putative Respondent
	And
	Director of Immigration	2nd Putative Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by the Honourable Mr. Justice P.Li:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

The applicant came to Hong Kong on 26 May 2010. She was permitted to take up employment as a domestic helper. Her employment visa was up to 26 May 2012 or two weeks after termination of the contract.

On 27 November 2012, she came to Hong Kong again employed as a domestic helper. She was allowed to stay until 27 November 2014 or two weeks after termination of the contract. However, on 1 September 2013, she departed Hong Kong for Indonesia.

On 30 November 2013, the applicant came to Hong Kong. She was again employed as a domestic helper. Her visa would expire by 30 November 2015 or two weeks after termination of the contract. Her contract was terminated prematurely. She left Hong Kong for Mainland China.

On 14 April 2014, she came to Hong Kong from Mainland China. She was again employed as a domestic helper. She was permitted to stay until 14 April 2016 or two weeks after termination of the contract. She was terminated on 14 July 2014. She overstayed in Hong Kong since then. She was arrested by the police on 19 August 2015. She filed her non-refoulement claim on 27 August 2015. She was detained by the Immigration Department until 23 September 2015. She was granted recognisance since.

She gave birth to a daughter on 21 April 2016. She filed a non-refoulement claim on 3 June 2016 for her daughter.

The basis of her claim was that her father was violent and abusive. She was subjected to persistent beatings when staying at home. If she returned to Indonesia, she would be subject to genuine and substantial risk of cruelty or inhuman treatment.

The Director of Immigration rejected her claim on 28 November 2016. The Director held that there was no injury satisfying the minimum level of severity. There was reasonable state protection and relocation choices. The violent behaviour of her father was a private matter. There was no evidence of official involvement, consent or acquiescence. There was reasonable state protection. There was no risk of arbitrary deprivation of life. The father’s conduct did not arise from persecution as defined under the Refugee Convention.

Decision of the Torture Claims Appeal Board

The Adjudicator found that the applicant was not credible about the violent behaviour of his father. He dismissed her appeal under all applicable grounds on 15 May 2017. The main reasons were:

a) The applicant described her father as a conservative authoritarian on the one hand, she also pointed out her father was a drunkard, gambler and user of prostitutes. The descriptions were not consistent.

b) It was only after some probing during the oral hearing that the applicant agreed she was not under threat from her father when she worked in a factory in West Jakarta from 1998—2007. She stayed in the dormitory of the factory.

c) Given that she had sent all her wages in Singapore back home, she could not explain why her father would still beat her up daily for more money.

d) The applicant failed to give a plausible explanation why she put up with the beatings.

e) The applicant failed to report to the police.

f) The applicant failed to explain why her siblings would not suffer the same beatings albeit they did not satisfy the demand from her father.

g) There was an organization PEKKA which assisted single women, divorcees and widows in Indonesia. The applicant declined to comment during the oral hearing.

h) There might be some discrimination against single mothers and children, however, there was no evidence that this situation reached a generalized level constituting persecution as defined under the Refugee Convention.

Hearing before this court on 16 August 2017

During the hearing, the applicant told this court that she was still waiting for the result of her legal aid appeal which was scheduled on15 December 2017. However, at the time of compiling this decision, I understand that her legal aid appeal was dismissed.

During the hearing, the applicant stressed that she had nowhere to go. Her siblings would not accept her. She had a lot of friends in Hong Kong. She asked for a chance to stay here. Unmarried mother with a child would be discriminated under the Muslim culture in Indonesia.

I agree with the reasons of the Adjudicator. The applicant’s claim is incredible. There is no arguable public law ground.

Conclusion

In my judgment, the leave application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.

Dated 19^th January 2018

	(Benjamin Chan)(Mr)
	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:
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)).		Sent/Handed to the Applicant/ the Applicant’s solicitors on 19-1-2018 Ms. Nila Wati Pujiningsih The Applicant, in person Applicant’s ref. no:		Sent/Handed 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 19-1-2018 1st Putative Respondent: Torture Claims Appeal Board 2nd Putative Respondent: Director of Immigration Respondent’s ref. no.: 1st Putative Respondent: USM 5466/16/12/113/I534 USM 5467/16/12/114/I535 2nd Putative Respondent: QA T/C 2471-2/16 (Formerly RBCZ 13108/15 & RBCZ 12385/16)

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