Mustikorini v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1573/2019

[2021] HKCFI 760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1573 of 2019

BETWEEN

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 Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant was a domestic helper in Hong Kong from 2015 to 2017. She changed employer in 2017 but her contract was terminated on 16/2/2017.  She overstayed until 16/10/2018 when she surrendered to the Immigration Department. She raised the non-refoulement claim of this case on 13/11/2018. 

2.She feared that she might be harmed or killed by the loan shark (‘Sucipto’) if she returned to Indonesia.  She refused to marry Sucipto as an alternative for settling her father’s loan.

3.Her non-refoulement claim was rejected by the Director on 22/1/2019. Her appeal to the TCAB was rejected on 26/4/2019.  She filed the leave application on 10/6/2019.

Background

4.The applicant was born on 3/12/1990.  She was from Pi Dodowatan Village, Central Java, Indonesia.  She was single and a Muslim.  She received education up to senior high school level.  She had been employed as a domestic helper in Taiwan (2013-2014) and Hong Kong (2015-2017).

5.In 2013, her father borrowed 300 million rupiahs[1] from Sucipto. Since then, Sucipto came every month to ask for payment. When her father failed to pay, Sucipto would scold her family and threatened to kill them. He also threatened to confiscate the family house.

6.There were occasions that her father was slapped. Sucipto also threw a water glass at her father and threatened to kill. However, other family members were never harmed.

7.In September 2013, she worked in Taiwan for 10 months in order to repay the loan. She returned to Indonesia thinking that the loan was paid up but later discovered that it was not. Sucipto approached her father proposing to marry her as an alternative to settle the loan. She refused but her father agreed.

8.She initially pretended to agree with the marriage. She then left home the next day and arranged through an agent to work in Hong Kong. She stayed with the agent for 3 months before leaving Indonesia for Hong Kong in November 2014.

9.She did not apply for non-refoulement protection earlier as she did not know the scheme.

10.She did not seek assistance from the Indonesian Police as she thought it was family matter. It would bring disgrace to her family.  If her father reported the assault, Sucipto would only be asked to compensate her father with a small sum.  She did not think she could seek help from other avenues.

11.She could not relocate as she had no connection elsewhere.  However, during the interview with the Director, she indicated that she would think about relocating to Jakarta and Bali. [2]

Decision of the Director of Immigration

12.The Director of Immigration concluded that there was no real and substantial risk of her perceived fear on the following grounds:[3]

(a)   Sucipto only slapped her father. He had never assaulted her causing any injury. She could stay safely with the agent for 3 months before leaving Indonesia. All these showed that Sucipto had no intention to harm or kill her. There was no ill-treatment amounted to ‘a minimum level of severity’. 

(b)   The loan was a private dispute between her father and Sucipto. There was no evidence that any Indonesian official was involved.

(c)   She had only raised the claim in October 2018 after she surrendered to the Immigration Department. The delay was contradictory to her fear of the threat from Sucipto.

(d)   The Director had considered various COI. It was accepted that there was serious corruption and impunity problems with the police in Indonesia.  Domestic violence against women was common. On the other hand, there were also reports that the Indonesian government had put measures to tackle corruption.  The Corruption Eradication Commission (‘KPK’) carried out investigations and prosecutions in high profile cases.  The ‘Ombudsman Commission’ and Judicial Commission tackled corruption amount officials and judges. There were NGO set up to investigate violations in human rights and domestic violence. There were programs to educate people on the status of women and alleviate gender-based poverty. The Director concluded that there was reasonable State protection.

(e)   The applicant had never sought help from the police in Indonesia.  There was no evidence that the police would not or unable to assist her. 

(f)    Internal relocation was permissible under Indonesian Law.  Indonesia was 1.8 million square kilometers in area with a large population.  It would be very difficult for Sucipto to locate her.  In fact, Jakarta, Denpasar and Palembang would be possible options for relocation. There were social and psychological assistance from NGO on relocation to other cities. Given her background, it was not unduly harsh for her to relocate.

13.The Director of Immigration opined that the loan dispute was a private matter. There was no real risk of ill-treatment. There was no official involvement and no torture as defied under s.37U of the Immigration Ordinance. The Director dismissed all her claims based on BOR 2, BOR 3, persecution and torture risk.[4]

Decision of the Torture Claims Appeal Board

14.The Adjudicator fixed an oral hearing on 12/4/2019. The applicant had nothing to supplement. The adjudicator found that there was no real risk of harm based on the following findings:

(a)   She did not suffer any injury from Sucipto. Her father only threatened to throw her out of the family house if she refused to marry Sucipto. It was in the hearing that she first claimed her father had slapped her once. 

(b)   In her NCF, she mentioned that she only knew about the loan after Sucipto slapped her father. However, in her statement she knew about the loan all along.

(c)   It was about May 2013 that she left home after refusing to marry Sucipto according to her evidence in the oral hearing. However, in her statement she said it was November 2014 that she stayed with the agent before coming to Hong Kong in January 2015. There was a gap of one year.

(d)   The applicant delayed for about 20 months before filing the non-refoulement claims in this case. The adjudicator did not accept her explanation that she slept in parks or stayed with friends sometimes. It was not logical.

15.The adjudicator had considered various COI. He concluded that there was reasonable State protection. It was not unduly harsh for her to relocate to Bali and Palembang. In fact, she had worked in Taiwan and Hong Kong.

16.The Adjudicator rejected her story given all the inconsistencies and illogical explanations. The adjudicator found she had not made out her case for non-refoulement protection.

17.Given that there was no real risk of ill-treatment, torture or persecution, the adjudicator rejected the appeal of all her claims.[5]

Judicial Review

18.The applicant filed the leave application for judicial review on 10/6/2019. In the grounds attached to the Form 86, she complained that the Director had not considered extra-judicial killing. She also complained that she was tortured by state law enforcement agencies and those high up in the political circles. That the attitude of the Director was unfair.  His decision was Wednesbury unreasonable.

19.In her affirmation dated 4/6/2019, she disagreed with the adverse findings of the adjudicator about her credibility.

20.In my view, it is obvious that the applicant had used another person’s ground in the Form 86. Her allegations therein against the Director were not based on the evidence she had presented. It was incomprehensible.

21.In any event, I only need to consider the decision of the TCAB in this judicial review. I agree with the reasons therein. There is no error of law and procedure.  The decision is reasonable.

Conclusion

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

Dated the 25^th  day of March 2021.    

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

Form CALL-1