Lisnawati and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2904/2018

[2021] HKCFI 2683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2904 of 2018

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:

Application for leave to apply for Judicial Review be dismissed for the 1^st to 2^nd Applicants.

Observations for the Applicants:

1.The 1^st applicant (A1) last came to Hong Kong from Macau on 9/8/2011 as a domestic helper.[1] Her contract was terminated early on 10/12/2011.  She overstayed until 19/4/2013 when she was arrested by the police for overstaying.   She gave birth to the 2^nd applicant (A2) on 24/11/2013.

2.A1 filed the non-refoulement claims in this case on 16/6/2014.  She filed the non-refoulement claim on behalf of A2 on 19/6/2014. 

3.The non-refoulement claim for A1—A2 was dismissed by the Director on 17/2/2017. Their appeal was dismissed by the TCAB on 5/10/2018.  She filed the leave application on 18/12/2018.

Background

4.A1 was born on 4/4/1980 in West Jawa, Indonesia [2]. She was a Muslim.  She had education for 9 years.   She was single.  She was a domestic helper in Taiwan (2006—2009) and Hong Kong (2010—2011).   Her family was in Indonesia.  She and her family had not joined any organization or group.  She had not been charged, arrested or imprisoned in Indonesia.

5.In 2009, she returned to Indonesia after completion of her contract in Taiwan.  Two loan sharks came to her home one day.  They claimed that her late mother [3] had borrowed IDR 70 million [4] from them.  They demanded repayment or else they would kill her.  They would take the house from her father.  Her brother knew about the loan.  He could not repay for her mother.[5]

6.A week later, the loan sharks came again.  She was not at home.  They told her brother to repay.  They repeated the threats.  They also indicated that they would take the case to court.

7.A month later, the loan sharks came again.  She promised to repay after taking up employment abroad.  They agreed to give her time. 

8.None of her family was hurt by the loan sharks during the encounters.  She had actually repaid IDR 5 million to them earlier on.

9.She came to Hong Kong in February 2010.  She used up her salaries on agent fee and daily necessities.  She could not repay the loan. 

10.One day in 2011, the loan shark called her and demanded repayment.  They threatened to send someone to kill her in Hong Kong.  She had to change her phone number to stop their calls.  Initially, she learned from her family that the loan sharks kept visiting her home.  Her family did not report to the police. Subsequently, she stopped contacting her family.  She did not know the updated situation.

11.Her contract was terminated in the end of 2011.  She overstayed in Hong Kong.  She met an African male and got pregnant in 2013.  After discharged from CIC [6], she contacted her family.  They were angry about her pregnancy.  Her father threatened to kill her. 

12.She did not think the police could assist her.  She knew nothing about the NGO.  She thought the loan sharks and her family would eventually locate her in Indonesia.  It would be difficult for her and her son to survive in other cities in Indonesia.  There would be no work for her.

The Decision of the Director in relation to A1—A2

13.The Director found that there was no real risk that A1—A2 be harmed or killed by the loan sharks or the family of A1 for the following reasons:

(a)   Despite the repeated verbal threats, the loan sharks had never harm A1 or her family in Indonesia.  There was no injury of ‘a minimum level of severity’ to both A1 and A2.

(b)   There was no evidence that the loan sharks would still pursue the loan.  Nor would they have the resources to locate A1 and A2 elsewhere in Indonesia.

(c)   Her father and brothers were only angry about her pregnancy.  They had never contacted her again since 2013.  There was no intention for her family to kill her or A2.  It was also unlikely that they had the resources to locate her and A2 in other parts of Indonesia.

(d)   The loan was a private dispute.  There was no evidence that any public official was involved.  A1 and her family had never sought assistance from the police.  It was inappropriate to conclude that the Indonesian authorities would not discharge their duties if they knew about the threats.

(e)   The Director accepted that there was serious corruption and abuses of human rights.  Domestic violence against women was common.  However, there were practical measures by the government to protect its citizen.  The KPK [7] had carried out investigations and prosecutions of corruption at all levels of the government.  There were anti-corruption courts in all provinces.  There were training programs for the police sponsored by other countries.  The National Ombudsman Commission was tasked to handle complaints from citizens.  There were NGO which provided services, crisis centers and shelters for victims of domestic violence.[8] There were organizations providing psychological support and literacy training to female heads of households as well as those in destitute.[9] The Director concluded that there was reasonable State protection.

(f)   The law in Indonesia allowed relocation.  There were organizations to help displaced persons, returning refugees and others.  [10]  It was a country of about 1.9 million km ² with a population of around 260 million.   A1 might move to other cities like Jakarta and Semarang.   The Director concluded that it was not unduly harsh for A1 to relocate.  A1—A2 could seek assistance from various NGO.

14.On 17/2/2017, the Director rejected the claims of A1and A2 on all grounds.

The Decision of TCAB on the appeal of A1—A2

15.Both A1 and A2 attended a hearing on 1/6/2018.  A1 gave evidence.  The adjudicator rejected the appeal on 5/10/2018.

16.The adjudicator found that A1 was inconsistent in various accounts in the NCF and the screening interview before the Director.  The adjudicator doubted the truthfulness of A1’s assertions.  Some assertions were implausible.  The centrepiece of her story had not been proven.  The adjudicator made the following findings:

(a)   On credibility

•  In her initial written representation for the claim, A1 indicated that she sought protection because of fear that her father and brothers threatened to kill her son.  She did not mention the threat by the loan sharks. The adjudicator queried that if the threat by the loan sharks was so significant, A1 could not have left it out.  [11]

•  A1 worked in Taiwan from September 2006—August 2009.  Her salary was IDR 4.5 million per month [12]. She remitted 2/3 of her salary to her mother.  After giving allowance for agent fee in the first 7 months, A1 must have remitted about IDR 36 million in the following year.  The adjudicator doubted the need for A1’s mother to borrow from the loan shark.  A1 agreed.  [13]

•  In her NCF, A1 said she did not have any money when she returned from Taiwan.  However, she told the Director that she paid IDR 5 million to the loan sharks so that they would not hurt her and her family.  In the TCAB hearing, she even said she had brought IDR 12 million home.  She could not explain this inconsistency.[14]

•  A1 was inconsistent as to when she learned about the loan.  In her NCF, she said it was one month after she returned from Taiwan.  The loan sharks told her about it at her home.  She however told the Director that her brother told her on the phone when in Taiwan.  In the TCAB hearing, she told the adjudicator according to the version in the NCF.   The adjudicator opined that she provided details even when she could not recall.  She made up some parts of her story.  [15]

•  A1 mentioned to the adjudicator that there was a written loan agreement purportedly with her as the guarantor.  She did not mention this in the NCF or to the Director.  The adjudicator found this guarantor arrangement implausible.  She even said the loan was IDR 30 million plus interest making the total to IDR 50 million.  She could not recall the interest rate.  The adjudicator had grave doubt as to the threat arising from the loan sharks.  [16]

•  A1 told the adjudicator that she remitted part of her salary (HK$1,500) to her aunt to repay the loan.  However, her aunt spent the money.  This was never mentioned elsewhere.  Further, it was her aunt who gave her phone number in Hong Kong to the loan sharks.  However, she said it was her brothers who did so in the NCF.  The adjudicator found this significantly undermined her credibility.  [17]

•  The adjudicator rejected the assertion that there were death threats from the loan sharks albeit there might be some risk from A1’s family.

(b)   State protection and internal relocation

•  The adjudicator found that there was reasonable State protection. Efforts were made to improve professionalism in the police force.  There were anti-corruption courts to tackle the problem.

•  There were NGO providing counseling and support to victims of domestic violence.  Organizations such as PEKKA were established to help women to create productive lives.

•  There was no evidence that the threat from A1’s family would extend beyond the home village.  There were many places where A1 and A2 could relocate.  Jakarta would be a reasonable option where A1 could find work and the necessary support for A2.  It would not be unduly harsh for both applicants to relocate given A1’s background.

(c)   Persecution risk

•  The adjudicator accepted that A1 and A2 were Indonesian outside their country.  In fact, A1 did not raise any concern that A2 would not be entitled to Indonesian nationality.

•  The adjudicator was doubtful about the intention of A1’s family to kill her and her son.  As long as she did not return to her home village, the alleged threats from A1’s family was limited.  Both A1 and A2 failed to prove a well-founded fear of persecution based on Convention reasons.  This ground failed.

(d)   BOR 3

•  The adjudicator rejected the evidence of A1 and found no threat of CIDTP from the loan sharks.  As to the threat from the family of A1, the adjudicator pointed out that the risk of harm was localized.  It might be mitigated by those programs supporting victims of domestic violence. 

•  It would be entirely eliminated if A1 and A2 relocated to another area which such support was available.  The adjudicator concluded that there was no real risk of CIDTP.  This ground failed. 

(e)   BOR 2

•  The adjudicator rejected the assertion of harm from the loan sharks.  He found that the threat from the family of A1 was probably not true. Given the findings of State protection and the relocation options, there was no real risk that their right to life would be deprived.  This ground failed.

(f)    Torture risk

•  The adjudicator rejected the evidence of A1 in relation to the loan sharks.  As to the threat of the family of A1, there was no involvement or acquiescence by any official.  A1 did not have any political affiliation.  She was not targeted by the government.  There were reasonable relocation options. There was no real risk of torture to both of them.

Judicial Review

17.A1 filed the leave application on 18/12/2018.  In her affirmation, she maintained that the Director and the TCAB disregarded her dangerous situation.   

18.In a case involving minors, it is important that the adjudicator considers the claim of the minors separately.  The dismissal of the claim of a parent does not necessarily follow that the child’s claim would be dismissed.  Further consideration of the personal situations of the child is always necessary.[18]

19.In the TCAB decision, the nationality of A2 was not in issue [19]. The adjudicator found A1 not truthful.  He rejected that there was any threat from the loan sharks.  He doubted that the family of A1 would carry out the death threats.   I agree with this conclusion. 

20.A2 was born in Hong Kong.  He had never met A1’s family.  Given that A2’s claim was premised entirely on A1’s claim, he could not give any evidence in relation to the threats or the surrounding circumstances.

21.A1 indicated to the adjudicator that she would like A2 to get education in Hong Kong [20]. The adjudicator had separately considered the difficulty of A2 if he returned to Indonesia.  He opined that there were NGO which could provide support to A1 and A2 being victims of domestic violence.

22.In my view, there was no issue specific to A2 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 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.[21]

23.There is no error of law and procedure.   I also find the TCAB decision reasonable.  There is no merit in the intended judicial review.

Conclusion

24.The intended judicial review is not reasonably arguable.   There is no reasonable prospect of success.   I refuse leave for judicial review.

Dated the 8^th day of September 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