Novi Azizah and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 400/2019

[2021] HKCFI 1383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 400 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 Applicants in open court;

Order by Deputy High Court Judge P. Li:

1.   Extension of time for application for leave to apply for Judicial Review be refused; and

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicants:

1.The applicant (A1) last came to Hong Kong in 3/7/2006 [1] as a domestic helper. Her contract was terminated on 24/7/2006. She overstayed until 20/6/2007 before she surrendered to the Immigration Department.  She gave birth to the 2^nd applicant (A2) on 17/8/2007.

2.She filed a torture claim on 17/9/2008. Her claim was rejected by the Director on 19/7/2011. Her appeal was dismissed by the TCAB on 15/8/2011.

3.She filed the non-refoulement claim in this case on 13/8/2013 jointly with A2. Three screening interviews [2] were adjourned because of her health. The Director decided to invite her to submit clarification questionnaires instead. On 29/5/2015, she gave birth to the 3^rd applicant (A3).

4.On 15/7/2015, she requested to add A3 to her claim. A screening interview was eventually held on 19/11/2015.

5.Her claim [3] was rejected by the Director on 27/11/2015 [4]and 11/4/2017 [5]. Her appeal was dismissed by the TCAB on 27/9/2018. She filed the leave application on 12/2/2019 jointly with A2 and A3. She was out of time for about 1½ months.

6.On 2/7/2017, she gave birth to A4. She filed a non-refoulement claim on behalf of A4 on 5/3/2019. This claim was rejected by the Director on 18/9/2019. The appeal was dismissed by the TCAB on 18/6/2020.

7.She applied to add the 4^th applicant (A4) to the original leave application on 24/11/2020. This court allowed her application to add A4’s name and the decision of the TCAB dated 18/6/2020 to the original Form 86. She filed the amended Form 86 on 8/12/2020. She was 2½ months out of time.

8.In hindsight, the more appropriate procedure should be a fresh leave application for judicial review and the appointment of legal representative for A4 as he was a minor.[6] However, for the reasons below, this would not be necessary. [7]

Background

9.The applicant was born on 5/11/1981 in Banyuwangi, Indonesia. She was adopted by a Madurese family in Sampit City of Kalimantan. Her adoptive father (‘M’) was a wholesaler in rice, sugar and oil. She had education for 9 years.  She was a factory worker in Taiwan (2000-2001), a domestic helper in Saudi Arabia (2002-2004) and a domestic helper in Hong Kong (2005-2006).  She married in Hong Kong in 2006.

10.About 2000, there was violent conflicts between 3 ethnic groups (Dayak, Madurese and Javanese) in the vicinity of Sampit City. Her adoptive brother died in an attack. Her adoptive family fled to Palangkaraya. M paid protection money to the Dayak group in order to carry on business.

11.After settling in Palangkaraya, M told her to return to Sampit City to check on their properties. She refused as it was dangerous. M was angry and assaulted her. There were two occasions that she recalled.

12.In January 2000, M kicked her knee causing dislocation. She was hospitalized for 2 days. She could not recover fully since then. Two days after she was discharged from the hospital, M kicked her again. She had bruises all over her body and recovered in two days. She received no medical treatment.

13.Later in 2000, she went to Taiwan and worked in a factory for one year. When she returned to Indonesia, M took all her income saved. M tried to force her to go to Taiwan again and threatened to ask the Dayak leader to kill her. She fled to Java and stayed with an employment agency. Eventually, she went to Saudi Arabia working as a domestic helper in 2002. When she returned to Indonesia in 2004, M took away all her income saved.

14.In 2004—2005, M continued to assault her with a stick and kicked her whenever she failed to comply with M’s demand. She had treatment in the community health center. She reported the assaults to the police in September 2004. The police visited M but did not take any action. She thought the reason being that M and the police officers knew each other. She did not follow up.

15.Later, she decided to run away from her adoptive family. She took a boat trip to Surabaya and arranged to work in Hong Kong through an employment agency. She came to Hong Kong on 1/3/2005. She told M on the phone that she did not want to know anything about M and his family.

16.Her contract was terminated shortly on 24/7/2006. Later in 2006, she married under Islamic ceremony. She and her husband [8] were baptized in 2008.

17.She last contacted M in 2008. M threatened to kill her son. M would not tolerate her conversion to Christianity. M would not allow her son to live with him.

18.She was in fear that M would kill her and her sons if she returned to Indonesia as she was converted to Christianity. The police would not assist her. M and his family members worked in the government and some were police officers. They would be able to locate her anywhere in Indonesia. She had no money to relocate anyway.

The Decision of the Director in relation to A1—A3

19.The Director found that the risk that she (A1) and her sons (A2 and A3) would be killed by M was low for the following reasons:

(a)  The applicant was physically abused by M repeatedly. She suffered some knee injuries and bruises. Although she claimed that her knee was dislocated and had not recovered since then, she could manage working in various places. She did not need much medical treatment. She could recover in about 2 days. The evidence did not support any ill-treatment amounting to “a minimum level of severity”.

(b)  There was no evidence to indicate that the assaults from M were instigated, encouraged or condoned by any public officer. It appeared that M wanted to force her to work and earn money for the adoptive family.

(c)  There was no evidence how M could locate her anywhere in Indonesia. Despite some of the members of the adoptive family worked for the government and a political party, it was her speculation that they would have means to locate her.

(d)  She doubted whether the police had taken any action. There was no evidence that the police refused to investigate or discharge their duties.

(e)  The Director accepted that there was corruption and infringement of human rights. Domestic violence against women was common. However, there were practical measures by the government to train and improve police effectiveness with funding from the Netherlands. The National Human Rights commission, the National Commission on the Eradication of Violence Against Women and the National Police Regulatory Commission were implementing project to improve public safety in the communities. There were Ombudsman offices and NGO established to tackle human rights complaints. Legal Aid Institution was an NGO assisting victims of domestic violence. There were NGO which provided services and network available to assist victims of domestic violence. The Director concluded that there was reasonable State protection.

(f)  The law in Indonesia allowed relocation.  It was a country of about 1.9 million km² with a population of around 250 million.  She might move to other city like Jakarta.  M would be difficult to locate her and her sons. The Director concluded that it was not unduly harsh for the applicant to relocate.

(g)  The constitution of Indonesia guaranteed freedom of religion. Most of the society was tolerant of minority religions. Islam and Protestantism were among the 6 official religious groups. The law forbids spreading hatred among certain ethnicity and religion. There was increased pluralism and protection of minority groups.

20.The Director rejected the claim of A1—A3 on all grounds on 27/11/2015.

21.The Director invited A1—A3 to submit additional evidence on BOR 2 ground. They did not file any further evidence. Based on the existing information, the Director dismissed the claim on BOR 2 ground in relation to A1—A3 on 11/4/2017.

The Decision of the Director in relation to A4

22.A4 was born on 2/7/2017. A1 filed a non-refoulement claim on his behalf on 5/3/2019.

23.The basis of the claim was the same as A1—A3. A1 added that she contacted M’s daughter in 2017. M’s daughter told her that M’s elder brother threatened to report her as she owed him 13 million Rupiahs for the agency fee for arranging her to Saudi Arabia.

24.There was no evidence that M and his family would inflict ill-treatment to A4. There was no evidence of arbitrary deprivation of life of A4. The claim asserted by A1 on behalf of A4 was private in nature. There was no public official involved. A1 was not targeted. There was no evidence that A4 would face real risk of persecution as defined under the Convention.

25.The Director rejected A4’s claim on 18/9/2019.

The Decision of TCAB on the appeal of A1—A3

26.The applicant gave evidence in the hearing fixed on 24/4/2017.  The adjudicator rejected the appeal on 27/9/2018.

27.The adjudicator found that A1 was unreliable and rejected her evidence in totality. The adjudicator made the following findings:

(a)  The assaults before going to Taiwan and Saudi Arabia. [9]

a.  A1 asserted during the screening interview (28/3/2011) that she was assaulted by M before she went to work in Taiwan. She could recall two incidents in particular which she sustained serious injuries [10]. However, she had not mentioned this assault in the NCF dated 9/2/2011.[11]

b.  In the same screening interview, she mentioned that in the end of 2001, M kept on assaulting her before she fled to Java and subsequently to Saudi Arabia for work. This was not mentioned in the NCF dated 9/2/2011.[12]

c.  A1 could not give a satisfactory explanation. She finally admitted she had not mentioned those assaults in the NCF dated 9/2/2011. The adjudicator pointed out that A1 did mention other incidents of assault by M in 2004 after she returned from Saudi Arabia. There was no reason that she did not mention the earlier assaults before she left for Taiwan and Saudi Arabia. The adjudicator had grave doubt as to whether these incidents occurred.

(b)  When did M learn about her pregnancy and conversion to Christianity.[13]

a.  In the NCF dated 9/2/2011, A1 mentioned that M would kill her when he knew about her conversion to Christianity and pregnancy before marriage. She used these exact wording: “he will try to kill me when he knows about this.”[14]

b.  In the SCF dated 27/10/2014, A1 repeated the same worry. She used these words: “Miseni will abuse me physically and torture me if he knows about it.”[15]

c.  During the screening interview (28/3/2011), A1 told the officer that she had already told M about all these in 2008.

d.  The adjudicator found this contradictory as the plain meaning of both NCF showed that M did not know she was pregnant and had converted to Christianity. However, in the screening interview in 2011, she said she had already told M in 2008.

(c)  The death of her adoptive brother.[16]

a.  In her NCF dated 9/2/2011, she mentioned her adoptive brother died during the ethnic conflict. She then went to work in Taiwan. She did not mention assault by M before leaving for Taiwan.[17]

b.  In her SCF dated 27/10/2014, she mentioned her adoptive brother, his wife and child died during the ethnic conflict. She did not mention working in Taiwan at all.[18]

(d)  The assault in 2004 after she returned home from Saudi Arabia.[19]

a.  In her NCF dated 9/2/2011, she mentioned that in the end of 2004, M often assaulted her with a stick at home in Palangkaraya.[20]

b.  During the screening interview (19/4/2011), she said M only assaulted her once in the same period.

c.  In her SCF dated 27/10/2014, she said M often assaulted her with a stick by the end of 2004.[21]

d.  The adjudicator noted this inconsistency.

(e)  Action taken to avoid the fear.[22]

a.  In her NCF dated 9/2/2011, she mentioned that she moved to village Kebubung for 3 weeks, between December 2004 to January 2005, to stay away from M who assaulted her.[23]

b.  During the screening interview (19/4/2011), she said she went to village Kebubung to clean the house. When put to her about the NCF answer, she could not explain.

(f)  Agent fee for arranging work in Taiwan.[24]

a.  In her NCF dated 9/2/2011, she mentioned that she borrowed 13 million rupiahs from the younger brother of M as agent fee for arranging work in Taiwan.

b.  In her SCF dated 27/10/2014, she said she borrowed 13 million from the elder brother of M as agent fee for arranging work in Saudi Arabia.[25]

c.  She explained the inconsistency in her written reply that there was misunderstanding. However, the adjudicator found this unsatisfactory as she had confirmed the accuracy in both NCF and SCF.

28.The adjudicator found that the above were material inconsistencies. He concluded that A1 was not credible. The information she asserted was unreliable. The adjudicator dismissed the appeal. Since the claims of A2 and A3 relied on that of A1, their appeal were dismissed.[26]

29.Despite the above conclusion, the adjudicator proceeded to consider the claim on each applicable ground. The adjudicator pointed out that there was reasonable State protection. There was no evidence that the police were unwilling or incapable of assisting her. Jakarta was a reasonable relocation option. It was very difficult for M and his family to locate her. There were NGO which could provide assistance to A1—A3.

30.The problem between A1 and M was a private family matter. The fear of ill-treatment was unlikely to materialize. It had nothing to do with any Convention reason. There was no evidence of arbitrary deprivation of life. The adjudicator rejected the respective claims of A1—A3.

The Decision of TCAB on A4

31.The basis of the claim raised on behalf A4 was substantially the same as raised before. In addition, A1 stressed that she had 3 children now. She had no marriage certificate. She strongly believed that M would harm her children. They had no birth certificate issued by the Indonesian government. M thought they were illegitimate. He would be cruel to them. They would not be entitled to any welfare or education assistance in Indonesia.[27]

32.The adjudicator pointed out that A1 was inconsistent about the agent fee issue as follows: [28]

(a)  In her SCF dated 27/10/2014, she said she borrowed 13 million from the elder brother of M as agent fee for arranging work in Saudi Arabia.[29]

(b)  In the NCF of A4 dated 5/6/2019, A1 mentioned that she last contacted M’s daughter in December 2017. M’s daughter told her that the elder brother of M threatened to report to the police about the debt and put her in prison. M’s daughter told her not to return to Indonesia until M’s elder brother passed away.[30]

(c)  At the hearing before the TCAB on 12/3/2020, A1 confirmed that she last contacted M’s daughter in 2018. That was the only telephone conversation with M’s daughter in 2018 which mentioned M’s elder brother. In that conversation, M’s daughter said she had to repay the debt as soon as possible. M’s elder brother asked about when would A1 repay the debt.

(d)  In this telephone conversation with M’s daughter, there was no mention of that M’s elder brother threaten to report to the police about the outstanding debt. However, in her written submission to the Director dated 5/3/2019 and the NCF dated 5/6/2019, she mentioned had told her such a threat. The adjudicator pointed out that The allegation of threat could not be true.

33.For the same reasons as the previous decision on A1—A3, the adjudicator concluded that A1 was totally unreliable and rejected her evidence in totality. As A4’s case depended on A1, A4’s appeal was dismissed.

34.The adjudicator went on to find there was reasonable State protection. The adjudicator opined that Jakarta was a reasonable relocation alternative. There was no evidence that M and his family had the resources to locate her.

35.The adjudicator had considered the situation of A4 in particular if he returned to Indonesia. According to ‘Country Advice Indonesia’, the children of unmarried couples would be issued birth certificates as illegitimate children. PEKKA[31] was a program working to overcome the discrimination against female heads of households in Indonesia. This program assisted female heads of household to establish network, learn various skills and apply for community loans for business and education of their children. The ministry of education and the ministry of religion for Islamic schools would provide financial grants for students from low-income families. There were other NGO which provide assistance to people in difficult situation.[32]

36.The adjudicator found that there was no official involvement. The dispute between A1 and M was a private matter. The fear of ill-treatment was unlikely to materialize. The fear was not connected with any Convention reasons. The adjudicator dismissed the appeal of A4.

Judicial Review

37.The applicant filed the leave application in relation to the TCAB decision (A1—A3) dated 27/9/2018 on 12/2/2019. She was 1½ months out of time.

38.She filed an application to add A4 to the original leave application in relation to the TCAB decision (A4) dated 18/6/2020. She filed an amended Form 86 dated 8/12/2020. She was 2½ months out of time.

39.In her affirmation filed in relation to TCAB decision dated 27/9/2018, she complained about the following:

(a)  the adjudicator failed to consider relevant COI. He had considered irrelevant information. The TCAB relied on unofficial sources of news reports.

(b)  A1 was unable to relocate. Her adoptive family would be able to locate her.

(c)  A2 and A3 were stateless. It would be cruel and inhuman to remove them to Indonesia.

(d)  On 27/9/2018, the TCAB dismissed the appeal. A1 only received the decision on 11/2/2019.

(e)  A1 had no legal representation during the appeal. The bundle was served shortly before the hearing. It was in English. She had no resources to instruct an interpreter.   

40.As the reasoning for both decisions were fundamentally the same, the above complaints should be applicable to both decisions.

41.This court fixed a hearing on 9/2/2021. A1 submitted that she was late in filing the leave application in relation to the TCAB decision dated 27/9/2018 as she did not receive it. She only learned about it when the Immigration Department called her on 11/2/2019.[33] The address on the original Form 86 was correct but in the recent two years the landlord disallowed her to use the letter box. She then used the address of ISS as correspondence address.

42.In relation to the TCAB decision dated 18/6/2020, she take it from the TCAB office around the end of September or the beginning of October 2020.

43.For both decisions, the applicants are out of time for a considerable period. There is undue delay. They should have applied for an extension of time. 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 and any prejudice to the respondents. [34]

Problems with the mail

44.A1 asserted that she was not allowed to use the letter box in the recent two years. This contributed to her failure to receive the TCAB decisions. I have the following observations:

(a)  According to the record in the SCF [35], from October 2014 to October 2015, the correspondence address was No. 621 Tai Kei Leng (621-TKL).

(b)  From February 2019, the correspondence address was changed to No.618 Tai Kei Leng (618-TKL). This address was used on the recognizance document Form 8 of A1 in October 2020.[36]

(c)  The TCAB decision dated 27/9/2018 was sent to 621-TKL. I take it that TCAB decision dated 18/6/2020 was also sent to 621-TKL. There was no evidence that A1 had updated the address from 621-TKL to 618-TKL with the TCAB or the Immigration Department.

(d)  Had there been any difficulty in using the letter box, A1 should have changed the correspondence address. However, from February 2019 to October 2020, she used 618-TKL as the correspondence address.

(e)  The address of ISS was first disclosed in the amended Form 86 dated 8/12/2020. Before that, she had not updated her correspondence address with the court.

45.A1 has the duty to update her correspondence address promptly. She must bear the consequence of failure to update. In any event, she must make arrangement to ensure that all mail be diverted to her. I do not accept the argument that she did not receive the TCAB decisions.

Failure to consider relevant COI

46.A1 did not specify any error or changes in the COI considered by the TCAB. She could have counterchecked if there was any query. In my view, the adjudicator had considered various COI. Some were set out in the appendix of the Director’s decision. The adjudicator had also set out the additional websites he referred to in the footnotes. They were from reliable sources. The adjudicator did not rely on newspaper reports from unreliable sources. I do not accept this ground.

Relocation of A1

47.The adjudicator had considered in detail the possibility of relocation for A1. While he had not specifically referred to A2 and A3 in the TCAB decision dated 27/9/2018, he did consider the situation of children in the TCAB decision dated 18/6/2020. In my view, the latter TCAB decision should also be considered as a supplement to the former TCAB decision.

48.I agree with his conclusion that it would be very difficult for M and his family to located A1—A4.

Statelessness of A2—A4

49.Although A1 only complained about the situation of A2 and A3, this complaint should also be applicable to A4 given they are of the same background.

50.In the TCAB decision dated 18/6/2020, the adjudicator cited the ‘Country Advice’ compiled by the Refugee Review Tribunal of the Australian Government. According to the report, children of unmarried couples are issued birth certificates as ‘illegitimate children’. The law (of Indonesia) does not attach any negative consequences to children born out of wedlock and they are not at risk of physical harm. [37]

51.In fact, statelessness was never raised by A1 before the Director or the adjudicator. In the respective SCF of A2—A4, their nationality was put as Indonesian.

52.In my judgment, A2—A4 should be able to obtain Indonesian nationality. This complaint fails.

No legal representative and interpretation of documents

53.A claimant is not entitled to legal representation at all stages of the application. As to the appeal bundle, the decision of the Director must have been translated to A1 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. A1 should have a reasonable understanding of the content of all these documents in the appeal bundles in both appeals. The written affirmation dated 12/2/2019 was written in English. This showed that A1 could have language assistance from other sources. In my view, there was no unfairness arising from language.

54.In fact, A1 could answer questions during the hearings before the TCAB. There was no record that she could not understand.

55.The adjudicator had analyzed the evidence of A1 in detail. There were important aspects which severely undermined her credibility. I agree with the findings of the adjudicator. In both decisions, the adjudicator rejected her evidence totally. Strictly speaking, there is no need for the adjudicator to consider State protection and relocation.

56.In addition, there was no issue specific to A2—A4 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—A4 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.[38]

57.In my view, there is no error of law and procedure.  I also find the TCAB decisions reasonable. There is no merit in the intended judicial review.

Conclusion

58.In my judgment, there is no good reason for extension of time to file the leave application against both TCAB decisions. The intended judicial review is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

Dated the 20^th day of May 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