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

HCAL 2993/2018

[2021] HKCFI 2869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2993 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 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 born on 4/8/1980 in East Java, Indonesia [1]. She was a Muslim. She married in 2006 with a daughter.  She did not know the whereabouts of her husband.  She had education for 9 years.  She was a domestic helper in Singapore for 2 years. She was a domestic helper in Hong Kong (2011-2012, 2013-2014). She had never joined any organisation. She was never charged, arrested or detained in Indonesia.

2.She came to Hong Kong on 4/1/2011 as a domestic helper. Her contract was terminated early in 2014. She tried to extend her stay by leaving and entering Hong Kong within 1-2 days. She was last permitted to stay in Hong Kong until 5/10/2014. She overstayed until she was arrested on 21/4/2016.[2]  She lodged the non-refoulement claim in this case on 28/4/2016 and 3/5/2016.

Background

3.Her husband was a driver.  About 2007, he started drinking and gambling. He had an affair with another woman. In 2010, he borrowed IDR[3] 30 million from a loan shark. The interest rate was 20 %. She did not know if it was monthly or yearly rate. She did not know other details about the loan. She did not know the background of the loan shark.

4.One day in early 2010, the loan shark and another man came to her home. Her husband was not at home. They told her about the debt. They asked her husband to repay. They did not harm her and her daughter. When her husband knew about this, he was angry and asked her to repay for him.

5.One month later, the loan shark came again. Her husband told the loan shark that she would repay the debt. She refused. The loan shark threatened to confiscate her house. They left without harming anyone. Her husband assaulted her later for refusing to repay for him. He threatened to kill her if she refused again. As a result, she had bruises on her leg and arm. She recovered in a few days. She did not report to the police.

6.About 2 days later, the loan shark and another man came again. The loan shark threatened to kill her if she refused to repay. The loan shark pushed her husband forcefully. Her husband fell on her. After they left, she had an argument with her husband outside their house. He assaulted her. She fell on the ground injuring her elbow. She applied medicine by herself. She did not report to the police. She could not afford a bribe.

7.About 2 days later, she left home with her daughter. She entrusted her daughter to her aunt. She went to Malang City and stayed with a friend. She got a job as a domestic helper in Hong Kong. She stayed with the agent for 5 months before leaving Indonesia in 2011.

8.Her contract was terminated early in October 2012. She returned to Indonesia staying with her friend for 3 months. She had another employment contract to Hong Kong in 2013. Her contract was terminated early on 16/6/2014. She went to China several times and returned to Hong Kong shortly afterwards to renew her visa. She was last permitted to stay until 5/10/2014. She overstayed.

9.She could not relocate as she had no relatives or friends elsewhere. Her husband was a driver. He would be able to locate her through his network of friends.

10.She feared that her husband and the loan shark might harm or kill her if she returned to Indonesia.

The Decision of the Director

11.The Director found that the risk that she would be harmed or killed by her husband and the loan shark was low for the following reasons: [4]

(a)     There were 2 occasions in which her husband assaulted her. She did not need medical treatment. She recovered in a few days. During the 3 visits by the loan shark and his man, they did not assault her. There was only verbal threat. The ill-treatment did not attain “a minimum level of severity”.

(b)     She could plan to escape from home with her daughter. She then secured an employment contract to Hong Kong. She was not mentally disturbed despite the threats from her husband and the loan shark.

(c)     She was safe while staying with her friend. Her daughter was safe with her aunt. She stayed with the agent for several months without being located by her husband and the loan shark. This showed that they did not bother to track her down. Chances that she would be at risk when she returned to Indonesia were low.

(d)     It was a private dispute.  There was no official involvement.  She chose not to report to the police. She could leave Indonesia through official channel. She was not targeted.

(e)     The Director had considered various COI.  There was widespread corruption and abuse of power in Indonesia.  Violence against women was common. However, there were on-going measures to improve the situation.  The Indonesian government had adopted measures to tackle corruption.  The ‘KPK’[5] carried out investigations and prosecutions in high profile cases.  There were NGO and new legislations passed to tackle domestic violence.  Organizations included the PEKKA, P2TPA[6], the National Commission on Violence against Women and National Commission of Human Rights were in operation to assist abused women.  The National Ombudsman and National Commission of Human Rights investigated misadministration of justice and human rights abuses.  There were ongoing police reform programs.  The Director concluded that there was reasonable State protection.

(f) Internal relocation was permissible under Indonesian Law.  Indonesia was a large country with 260 million people.  It would be very difficult for her husband and the loan shark to locate her.  Their influence was localized.  In fact, Jakarta and Surabaya would be possible options for relocation.  Given her background, it was not unduly harsh for her to relocate.

12.The Director dismissed her claim on all grounds on 6/4/2018.

The Decision of TCAB

13.The applicant attended the hearing fixed on 31/7/2018.  The adjudicator rejected the claims on 29/11/2018.

14.The adjudicator found that the applicant was not credible and rejected her evidence.  The adjudicator pointed out the following important aspects:[7]

(a)     During the hearing before the TCAB, the applicant said it was after the 1^st visit of the loan shark that her husband disclosed the details of the loan during their argument. However, in her NCF, she said it was the loan shark who told her about the details of the loan. She was unable to explain the inconsistency.

(b)     The applicant only mentioned 2 visits by the loan shark whereas in the NCF, there were 3 visits. She did not mention to the adjudicator that the loan shark threatened to confiscate her house. She did not mention to the adjudicator that her husband would burn her alive. These were inconsistent with the NCF. She did not offer any explanation.

(c)     The applicant had delayed in filing the non-refoulement claim until 28/4/2016 whereas she first came to Hong Kong in 2011. There was a delay of 5 years. The adjudicator did not accept that she was scared. This greatly undermined her credibility.

(d)     The adjudicator did not accept there was any threat by her husband and the loan shark. There was no torture or CIDTP. There was no real risk of persecution on Convention basis.

15.The adjudicator rejected her appeal on all grounds on 29/11/2018.

Judicial Review

16.The applicant applied for leave for judicial review of the TCAB decision on 28/12/2018.  In her affirmation, she had not specified any error in the TCAB decision.

17.The applicant filed a written submission on 23/2/2021 and requested for an oral hearing. She attended a hearing on 19/7/2021. She had nothing to update. She had no further complaint.

18.In her written submission, she made the following complaints:

(a) The hearing bundle was in English. She did not have sufficient time to prepare. She could not afford an interpreter. She had difficulties understanding the documents. She was unrepresented.

(i) The most important document in the hearing bundle was the decision of the Director. It was sent to the Duty Lawyer Scheme. They should have translated the decision to her.

(ii) A claimant is not entitled to legal assistance at all stages of the application. The applicant should seek assistance from others according to her resources. There is no duty on the part of the Director to supply translated documents. In the TCAB hearing, there was an interpreter.  She should have sought assistance from the adjudicator if in doubt.

(iii) I notice that both the Form 86 and the affirmation for the leave application were written in English. The applicant was able to find language assistance.

(iv) The applicant was able to answer questions put by the adjudicator. There was no record of any complaint. This showed that she understood the proceedings. There was nothing unfair.

(b) The applicant complained that the adjudicator relied on news sources which were not officially recognised and were hearsay in nature. The reasoning consisted of groundless speculations.

(i) The adjudicator found that the applicant was not credible and rejected her evidence. There was no need to consider any news sources or COI. The applicant’s complaint was groundless.

19.It is the duty of the TCAB to assess credibility and establish the facts. In general, this court would not interfere.  I have considered the evidence of the applicant.  I agree with the adjudicator that she was not a truthful witness.

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

Conclusion

21.In my judgment, this case is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

Dated the 28^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