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

HCAL 1625/2019

[2021] HKCFI 1410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1625 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.She last came to Hong Kong on 20/1/2016 under a 2-year-contract as a domestic helper.  The contract was terminated about a month later.  She overstayed and surrendered to the Immigration Department on 21/3/2016.  She lodged the non-refoulement claim in this case on 25/8/2016.

Background

2.The applicant was born on 2/1/1981 in East Java, Indonesia[1]. Her mother and brothers were in Indonesia.  She had education for 9 years.  She was a domestic worker in Singapore (1996—1997), Taiwan (1999-2002) and Hong Kong (2010-2016).  She first married in 2002 and had a son. She divorced in 2005.  Later in 2005, she married Rahman and had a son.

3.After the marriage to Rahman, she was abused by him from time to time.  She did not report to the police.  She applied ointment and took pain killers.  It was about 20 times from 2005 to 2011.

4.About 6 months after the marriage to Rahman, a loan shark and his gang came to her home.  They pressed Rahman to repay a loan of 20 million rupees[2] and monthly interest of 1 million rupees.

5.From 2005-2011, the loan shark and his gang came again two times.  They threatened to kill her and Rahman.  Subsequently, a neighbour’s husband, who was a police officer, helped to persuade the loan shark to allow more time.  She did not report to the police.  She proposed to divorce Rahman but he refused.  She thus came to work in Hong Kong to avoid Rahman and the loan shark.

6.In early 2010 when she was in Hong Kong, she received messages from Rahman threatening to kill her and stop her from seeing their son.  Her mother reported to the police in Indonesia.  The police did not take any action.  She thought her mother could not afford a bribe.  In 2011, she had a relationship with her boyfriend in Hong Kong.

7.She returned to Indonesia in October 2012 after the expiry of her contract.  Her mother had remarried Jamil (“J”).  They lived together with her son and Rahman in her house.

8.During her stay in the house, “J” forced her to marry a wealthy old man. She refused. Rahman also assaulted her suspecting that she had a boyfriend in Hong Kong.  She fled and stayed with the agency.  Before she left for Hong Kong for another contract, she went back to her home and was assaulted by “J” again. “J” threatened to kill her.  She did not report to the police as she could not afford a bribe.

9.She returned to Hong Kong on 19/1/2013 under another contract.  Her contract was terminated and she returned to Indonesia in September 2014.  She stayed at her home during the weekends and at the agency at other times.  She argued with Rahman about his affair with another woman.  Rahman assaulted her.  She did not report to the police.  Rahman sent her life threatening messages during this period.

10.On 18/10/2014, she returned to Hong Kong under another contract.  While in Hong Kong, she received threatening messages from Rahman and her mother.  Rahman blamed her for having another relationship. “J” threatened to kill her if she refused to marry the wealthy old man.

11.She returned to Indonesia in November 2015 after her contract was terminated.  Rahman had married another woman.  She was pregnant.  There was an occasion that Rahman set her up to be sexually assaulted by his friend.  She managed to escape.

12.The loan shark and his gang came to her house once and pressed her to repay Rahman’s loan.  They threatened to kill her and confiscate her house.  She did not report to the police.  It was useless.

13.Subsequently, she left for Hong Kong again on 20/1/2016.  While in Hong Kong, she received threats from Rahman, “J” and the loan shark.  She changed her phone number.  Rahman could not reach her.  Her mother however told her the loan shark was still asking about her.

14.Before she surrendered to the Immigration Department, she did not know how to apply for non-refoulement protection.  She asserted that corruption was serious in Indonesia.  The authorities would not help her.  She could not relocate as Rahman, “J” and the loan shark could locate her.

15.She was in fear of being harmed or killed by (1) “J” for refusing to marry a wealthy old man; (2) Rahman for having an affair in Hong Kong and (3) the loan shark for failure to repay Rahman’s loan.

The Decision of the Director

16.The Director found that the risk that she would be harmed or killed by Rahman, “J” and the loan shark was low for the following reasons:[3]

(a)  The applicant was abused by Rahman after their marriage. From 2005 to 2010, there were about 20 incidents of assault.  She was not seriously injured. She did not need formal medical treatment.  While Rahman had been sending her death threats, there was no evidence that those threats would materialize.  Rahman married another woman in 2015.  Her affair in Hong Kong should no longer be his concern.  There should be no risk of harm from Rahman.

(b)  Rahman was the one who borrowed from the loan shark.  It was in 2005.  Throughout the period 2005-2010, Rahman was safe despite he remained in the home village. In the same period, she encountered the loan shark and his gang three times.  They did not harm her.  The risk of harm from the loan shark was low.

(c)  “J” assaulted her once in 2012 as she refused to marry a wealthy old man.  It was not serious injury.  She did not encounter “J” in 2014 and 2015.  The risk of harm was low.

(d)  The evidence showed that the injuries she suffered from the above persons were not serious.  She just applied ointment.  The injuries did not amount to “a minimum level of severity”.

(e)  There were several occasions that she returned to Indonesia after her contracts were terminated in Hong Kong.  She stayed at her house despite Rahman and “J” were there.  Her conduct was not consistent with imminent fear of her safety as she asserted.

(f)  She first came to Hong Kong in 2010 but she only applied for protection until 2016 despite the constant threats from those persons.  Her conduct was not consistent with imminent fear of her safety as she asserted.

(g)  She arranged for new contracts from time to time.  She even confronted Rahman on knowing his affair.  She refused to marry a wealthy old man.  She managed to escape from “J” and the sexual assault by Rahman’s friend.  It appeared that her mental state was not affected.

(h)  There was no evidence that Rahman, “J” and the loan shark had the resources to locate her anywhere in Indonesia.  The disputes were private matter.

(i)  The Director had considered various COI.  There was widespread corruption and inefficiency of the police.  The judiciary was corrupt too.  However, there were practical measures to improve the situation.  The Indonesian government had adopted measures to train the police and tackle corruption. The Corruption Eradication Commission (‘KPK’) carried out investigations and prosecutions of cases.  The National Ombudsman and the Judicial Commission investigated misadministration of justice.  There were measures to improve the performance of the police.  The PEKKA[4] was tasked to help women by improving their livelihood.  The Director concluded that there was reasonable State protection.[5]

(j)  Internal relocation was permissible. Indonesia was a large country and densely populated.  It would be very difficult for the above three persons to locate her.  In fact, Jakarta and Bali would be possible options for relocation.  Given her background, it was not unduly harsh for her to relocate.[6]

17.The Director dismissed her claim on all grounds on 19/4/2018.[7]

The Decision of TCAB

18.The applicant attended a hearing fixed on 2/4/2019 before the TCAB. She updated her current situation.

19.The adjudicator pointed out the following important observations in the hearing:[8]

(a)  Rahman had married another person and was expecting a child.  He lived apart from her home at another village.  Rahman was employed for odd jobs.  In any event, she could relocate to other places.  Rahman would not be able to locate her.  All these indicated Rahman was no longer a risk of harm.

(b)  Seven years had elapsed since “J” last proposed her to marry an old man. During this period, “J” and the applicant’s mother continued to care for her son.  The applicant had an affair in Hong Kong.  The adjudicator did not believe that “J” would still force her to marry the wealthy old man.  There was no risk from “J”.

(c)  The applicant met the loan shark on 2 occasions during the period 2005-2011. She had returned to Indonesia during 2012-2015. She was not located by the loan shark. According to the applicant, the loan shark still went to her mother asking about her. However, her mother and her son was never harmed.  The adjudicator doubted her fear of the loan shark.

20.The adjudicator found that the applicant was not subject to any genuine risk of harm if she returned to Indonesia.  The adjudicator rejected her appeal on all grounds on 31/5/2019.[9]

Judicial Review

21.The applicant filed the leave application on 14/6/2019.  She put forward the following grounds in the Form 86:

a.  The Director and the TCAB failed to consider extra-judicial killing if the applicant returned to her country. There was insufficient time to arrange evidence for the claim and the appeal.

b.  The Director failed to consider state acquiescence as the applicant was tortured by the law enforcement agencies of the State and those high up in the political circles.

c.  The Director failed to consider COI which showed human rights abuses in her country.

22.The applicant attended a hearing before this court on 9/2/2021.  She reiterated that she has been in Hong Kong for 13 years.  She just did not want to return to Indonesia.  Rahman has married another woman, however, he still contacted her.

23.In this leave application, this court would concentrate on the decision of the TCAB.

24.The grounds raised in her Form 86 are perplexing.  Extra-judicial killing was never an issue in the factual basis of her claim.  There was no torture by the law enforcement agencies of the State.  The risk of harm as asserted by the applicant was from Rahman, “J” and the loan shark.  These were all private matters with no State involvement.  These are the findings of the TCAB.  I have the impression that she adopted the grounds of someone without checking its content.  There is no substance in this ground.

25.The applicant complained that she had insufficient time to prepare.  This was never raised with the Adjudicator.  It was not raised with this court too.  She had not specified what evidence she needed time to locate. In reality, the applicant first came to Hong Kong in 2010. She filed the non-refoulement claim in August 2016.  The TCAB hearing was in April 2019. I do not accept this ground.  She has plenty of time to prepare.

26.As to the COI, the Director had extensively considered relevant COI in relation to corruption and human rights issues.  In addition, the adjudicator had considered relevant information on domestic violence and marriage law in Indonesia. I do not accept the criticism of the applicant.

27.In my view, there is no error of law and procedure.  Given the evidence submitted by the applicant, I find the decision of the TCAB reasonable.

Conclusion

28.In my judgment, this case 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