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

HCAL 2858/2018 & HCAL 792/2020

[2021] HKCFI 2381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2858 of 2018

BETWEEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 792 of 2020

________________________

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:

The applications for leave to apply for Judicial Review in HCAL 2858/2018 and HCAL 792/2020 be dismissed.

Observations for the Applicants:

1.The 1^st applicant filed her non-refoulement claim in April, May and June 2017.[1]  Her claim was rejected by the Director on 1/2/2018.  Her appeal was dismissed by the TCAB on 2/11/2018.  She filed the leave application on 13/12/2018 (HCAL 2858/2018).

2.Meanwhile, before the TCAB decided on the 1^st applicant’s appeal, she gave birth to the 2^nd applicant on 26/8/2018.  Later, she filed a non-refoulement claim on behalf of the 2^nd applicant on 17/12/2018. The Director dismissed the 2^nd applicant’s claim on 28/3/2019.  Her appeal was dismissed by the TCAB on 4/3/2020.  The 1^st applicant filed the leave application on behalf of the 2^nd applicant on 29/4/2020 (HCAL 792/2020).

3.In view of the above, this court decided to hear both applications together.

Background

4.The 1^st applicant was born on 18/9/1988 in Sitiarjo village, East Java, Indonesia.  Her mother and 2 siblings were in Indonesia.  She had education for 9 years.  She had 4 years’ work experience as a domestic helper in Taiwan (2008-2010) and Hong Kong (2011-2013).

5.She last came to Hong Kong on 7/6/2013 under a domestic helper contract.[2]  Her contract was terminated early.  She overstayed until 31/3/2017 when she was arrested for overstaying.  She lodged the present non-refoulement claim in April—June 2017.

6.In 2009 when she was working in Taiwan, her husband told her that he had borrowed 150 million IDR[3] from a loan shark.  She had no knowledge about the loan.  She had not seen or signed any loan agreement.  She believed her husband had spent the loan on alcohol and drugs.  Her husband told her to remit 2 million IDR to him each month.

7.In October 2010 when she returned to Indonesia, she found out that she was the guarantor of her husband’s loan.  Since then, she was often assaulted [4] by her husband whenever she failed to give him money.  She sustained bruises and swelling all over her body.  Her sister brought her medicine.  Each time, it took about a week to recover.  She did not report to the police as it was money dispute.

8.In December 2010, she fought with her husband during an argument about money.  She did not sustain any major injuries.  She fled to her sister’s house nearby.  Two days later, she discovered that her husband had deserted home.

9.About 2 weeks later, the loan shark and his men came for her husband.  They took away some of her properties and her money.  They threatened to kill her and her husband if the loan was not settled in time.  She was not attacked.  She had not reported to the police.

10.In the next 6 months, they came 2-3 times each month pressing for repayment.  They threatened to kill her.  She was not harmed.

11.She stayed in the training center for 2 months before finally departed for Hong Kong on 22/8/2011.  She planned to earn money to repay the debt.  Meanwhile, the loan shark called her for repayment.  Her contract was terminated early in January 2012.

12.She stayed in Macau for about 2 months with the agency.  She changed her phone number.  The loan shark could not locate her in Macau.  

13.She returned to Hong Kong on 8/3/2012 on another contract.  She was again terminated early on 6/1/2013.  She stayed in Macau for 5 months processing another contract.  The loan shark could not contact her during this period.

14.On 7/6/2013, she came back to Hong Kong on another contract.  However, she was again terminated early on 19/8/2013.  She overstayed in Hong Kong since 3/9/2013.

15.She did not think government service centers could provide assistance as the demand was high.  She did not know if the “KPK” could help her. [5]  She believed the loan shark could locate her anywhere in Indonesia.

16.Her sister told her recently that the loan shark still asked about her and threatened her family.  She was afraid that the loan shark would kill her if she returned home.

The non-refoulement claim of the 1^st applicant (HCAL 2858/2018)

Decision of the Director (1^st applicant)

17.The Director found that the risk of harm was low for the following reasons:

(a)  Although her husband assaulted her on many occasions, it was limited to slaps, punches and kicks.  She needed not consult any doctor.  Her injuries did not reach ‘a minimum level of severity’.

(b)  Her husband had deserted her.  There was little risk that she would be harmed by her husband.

(c)  There was no evidence of any State involvement.  She was not targeted by the Indonesian government.

(d)  The loan shark and his men pressed for repayment mainly by threats.  They never assaulted her or her family.  They just put pressure on her.  There was no intention to kill or harm her.  There was no real risk of harm in future.

(e)  There was no evidence that the loan shark had the resources to locate her anywhere in Indonesia.  In fact, she told the Director that his influence was limited to the vicinity of her home village.

(f)  She did not seek police assistance in Indonesia.  There was no evidence that the police would not investigate because of her husband’s connection.

(g)  The Director accepted that there was corruption, inefficient police and abuse of power in Indonesia.  However, there was on-going improvement in Indonesia.  The KPK continued to investigate and prosecute corruption cases against the police, officials and judges.  There were training programs sponsored by foreign governments for the police.  The National Ombudsman Commission handled complaints on abuse of power.  There were organizations [6] which assisted in the protection of woman and child victims of violence in Indonesia.  The Director found there was sufficient State protection.

(h)  Indonesia was a large country with a population of about 260 million.  Relocation was permitted.  The applicant might move to other cities like Bali, Jakarta or Surabaya.  The Director concluded that it was not unduly harsh for the 1^st applicant to relocate and avoid the threats.

18.The Director dismissed the non-refoulement claim on all grounds. [7]

Decision of the TCAB (1^st applicant)

19.The 1^st applicant attended the hearing fixed on 26/9/2018.  The adjudicator considered her oral evidence and other material in the appeal bundle.  The adjudicator rejected her claim on 2/11/2018.

20.The adjudicator rejected her evidence and found that her fear was based on her speculation.  The adjudicator dismissed the appeal on the following grounds:

(a)   The 1^st applicant was unable to recall anything about the loan raised by her husband.  There was no written agreement.  She had never signed any document to stand as a guarantor.  She was asked to shoulder the loan but she never asked her husband for any detail.  The adjudicator opined that it was unreasonable.

(b)   She had no idea how the loan shark could harm her.  She did not know how the loan shark was connected with the police.  It was her guess that the loan shark was powerful.

(c)   Initially she told the adjudicator that her husband did not give any reason in asking her to remit money from Taiwan.  Later, she said it was for the child.  She had not mentioned this to the Director.

(d)   The 1^st applicant alleged that she was assaulted by her husband 3 times a week for several months.  Had that been the case, her injuries would not be as asserted.  Given the violence as she described, her husband had no intention to kill or harm her seriously.  In fact, her husband had deserted home since December 2010.

(e)   The loan shark and his men had demanded for repayment many times.  They had never assaulted her.  She admitted that the loan shark and his men came only for repayment.  Had they wanted to kill or harm her, they had plenty of chances.  She speculated that the loan shark might take revenge if she reported to the police. 

(f)    The 1^st applicant only learned from others that the loan shark had friends in Jakarta and Java.  She knew nothing about his background.

(g)   The 1^st applicant could not recall the names of her employers in Hong Kong.  She could not recall the name of her agent.  Had she been so desperate to repay the debt, she must have tried her best to work.  The early termination of 3 contracts was inconsistent with her determination to earn money for repaying the debt.

The non-refoulement claim of the 2^nd applicant (HCAL 792/2020)

21.The 2^nd applicant was born on 26/8/2018 in Hong Kong.  Her biological father was a local Chinese.  He had deserted her and her mother (‘1^st applicant’).  She relied on the factual basis of her mother’s non-refoulement claim.

22.The 1^st applicant attended the screening interview before the Director representing the 2^nd applicant.  She told the Director that she was afraid her family would kill her as she had a relationship with another man.  This was against the Islamic norms.  However, she told the Director in the 2^nd interview that she had lost contact with her family after she got pregnant.[8]

23.The 1^st applicant told the Director that she did not know anything about the KPK and the NGO which supported women in need.

Decision of the Director (2^nd applicant)

24.The Director dismissed the 2^nd applicant’s claim on the following reasons:

(a)   The loan was a private matter.  The loan shark had lost contact with the 1^st applicant since 2012.  There was no reason for the loan shark to pursue the 1^st applicant instead of her husband.  The loan shark did not know about the birth of the 2^nd applicant.  There was low risk that the 2^nd applicant would be ill-treated by the loan shark if she returned to Indonesia.

(b)   The 1^st applicant had lost contact with her family since pregnancy in 2017.  Nobody was informed about her extra marital affair and the birth of the 2^nd applicant.  There was no evidence that both applicants would be expelled or ill-treated by other villagers.

(c)   There was reasonable State protection in Indonesia.  There were service centres providing integrated services for women and children.  They were operated by the government and NGO.  Internal relocation was viable to Semarang and Bali.  Had the loan shark been so powerful, he should pursue the 1^st applicant’s husband for repayment instead of her.

Decision of the TCAB (2^nd applicant)

25.The 2^nd applicant lodged an appeal through the 1^st applicant.  A hearing was held on 3/12/2019.  The 1^st applicant confirmed with the adjudicator that the basis of the 2^nd applicant’s claim was the same as hers.  Having considered the relevant oral evidence and the documents, the adjudicator dismissed the appeal.  The reasons were as follows:

(a)   When the 1^st applicant told her sister about the 2^nd applicant, her sister said nothing intimidating.  There was no mention that any family member would harm or kill the 2^nd applicant.

(b)   The 1^st applicant said that she had no information about the attitude of the villagers towards the 2^nd applicant.  She could not explain why the villagers would harm or kill the 2^nd applicant.  There was no evidence whatsoever to support the fear asserted by the 1^st applicant in this aspect.

(c)   The adjudicator repeated the reasons based on which she rejected the 1^st applicant’s assertion about the loan and the guarantee agreement.  She rejected the 1^st applicant’s claim of fear towards the loan shark.

(d)   The adjudicator also repeated the reasons that she rejected the asserted fear of harm from the husband of the 1^st applicant.  In fact, he had deserted her since December 2010.

26.The adjudicator concluded that the 2^nd applicant’s claim based mainly on the evidence of the 1^st applicant.  Given that the latter was entirely speculations, the adjudicator rejected the appeal of the 2^nd applicant on all grounds.

Judicial review

27.The 1^st applicant filed the leave application on 13/12/2018.  The 2^nd applicant filed the leave application on 29/4/2020.

28.The 1^st applicant did not point out any error in the decision of the Director and the TCAB.  Likewise, the 2^nd applicant did not point out any error in the decisions.

29.On 29/6/2021, this court held an oral hearing.  The 1^st applicant had nothing further to update on the basis of her claim.  She confirmed that the father of the 2^nd applicant was a local Chinese.  She had lost contact with him.  She understood that the 2^nd applicant could obtain Indonesian nationality because she was an Indonesian national.

30.In relation to the leave application of the 1^st applicant (HCAL 2858/2018), I agree with the adjudicator.  Her evidence was vague and lacks details.  It is not credible.  There is no error of law and procedure.  I also find the decision reasonable.  I refuse leave for judicial review.

31.In relation to the leave application of the 2^nd applicant (HCAL 792/2020), the adjudicator had considered the claim separately.  She had considered the assertion that the 2^nd applicant might be rejected by the 1^st applicant’s family and the villagers.  She however rejected such risk. She pointed out that there were NGO [9] which could offer assistance.  I agree with her findings.  There was no error of law and procedure.  The decision of the TCAB was reasonable.

32.The nationality issue of the 2^nd applicant was not discussed in the decision of the TCAB.  The 1^st applicant did not raise it during the appeal or before the Director.  This issue was specifically put to the 1^st applicant during the hearing before this court.  The 1^st applicant confirmed that the 2^nd applicant could obtain Indonesian nationality.

33.In my view, there was no issue specific to the 2^nd applicant 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 the 2^nd applicant as a mere irregularity.  Legal representation would not serve any useful purpose as the intended judicial review was without merits.[10]

Conclusion

34.In my judgment, both leave applications are not reasonably arguable.  There is no prospect of success.  I refuse leave for judicial review in both cases.

Dated the 17^th day of August 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

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