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

HCAL 1202/2019

[2022] HKCFI 138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1202 of 2019

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 the Applicant being absent 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 came to Hong Kong on 1/3/2017 as a visitor.  She overstayed until 6/4/2017 and surrendered to the Immigration Department.  She filed the non-refoulement claim in this case on 12/7/2017.

2.The applicant was born on 15/12/1986 in Jakarta, Indonesia.  She had education for 9 years.  She was a factory worker for one year.  She was married with 2 daughters.

Background

3.Her husband was an addict.  He borrowed 150 million rupiahs from a drug supplier (“creditor”).  During the period 2014-2015, the creditor came for repayment 3 times.  The creditor threatened to confiscate her assets and harm her family.  She was not assaulted.

4.She moved to her friend’s home in Bogor to avoid the creditor.  She stayed there from 2015 to 2017.  She sold food and drinks for a living.  She arranged her children to boarding school.  She left Indonesia as the creditor found out her address in Bogor.  She had lost contact with her husband.

5.She did not report to the police as she could not afford a bribe[1]. She had no evidence against the creditor as she was not injured.  She was afraid the creditor would harm her before the police took any action.  She had no money to relocate to other cities.  Her friend also paid for the expenses of her children.

6.She feared the creditor would kill her if she returned to Indonesia.

The Decision of the Director

7.The Director found that there was no substantial ground to believe that she would be at risk of being harmed or killed by the creditor for the following reasons: [2]

(a)  The applicant encountered the creditor 3 times in 2014—2015.  She suffered no injury.  She was only threatened.  There was no ill-treatment amounting to “a minimum level of severity”.  There was no real risk of future harm.

(b)  There was no evidence that the creditor had located her despite he allegedly knew her address.  This showed that his influence was localized in the vicinity of her home town.  Her husband borrowed the loan.  It was not reasonable that the creditor pursued her instead. 

(c)  There was no evidence that any public official was involved.  It was a personal dispute.

(d)  The Director accepted that there was corruption and infringement of human rights by the police.  However, there were practical measures by the government to improve police effectiveness.  The Corruption Eradication Commission (‘KPK’) carried out investigations and prosecutions at all levels.  The National Ombudsman Office was a venue for complaints.  Even a top judge was imprisoned for taking a bribe.  There was no evidence that the government was unable to discharge their duties or tolerate unlawful acts.  The Director concluded that there was reasonable State protection.

(e)  The law in Indonesia allowed relocation.  It was a country of about 1.9 million km² with a population of around 260 million.  She might move to other city like Semarang and Surabaya.  The creditor would not be able to locate her.  The Director concluded that it was not unduly harsh for the applicant to relocate. 

8.The Director rejected her claim on all grounds on 25/6/2018.[3]

The Decision of TCAB

9.The applicant gave evidence in the hearing fixed on 1/2/2019.  The adjudicator was not satisfied that there was any threat arising from the unpaid debt of her husband.  She rejected the appeal on 26/4/2019.  The adjudicator made the following findings:[4]

(a)  The applicant asserted in the NCF that the debt was 150 million rupiahs. She however told the adjudicator that she did not know the exact sum.  The creditor only told her it was up to 100 million rupiahs.  She could not explain the inconsistencies.

(b)  In her NCF, the applicant stressed that the creditor came 3 times in the period 2014—2015.  She however told the adjudicator that it was several times. She had not told her husband about the creditor as he had disappeared already. She later explained that the creditor first came in 2015 after her husband disappeared. 

(c)  In her NCF, the applicant said she stayed with a friend in Bogor from 2015—2017.  She earned a living selling food and drinks.  However, she told the adjudicator that she only lived and worked at Bogor for 3 months.  She remained at her home town most of the time.  She could not explain how could she afford the rent at her home town.  The applicant eventually told the adjudicator that she did not live with her friend in Bogor.  She had worked in a factory which provided accommodation.  She could not explain this inconsistency with her NCF.

(d)  She told the adjudicator that the creditor never harmed her or her family.  In fact, she sold her properties to pay for her trip to Hong Kong.  This was contradictory to her NCF. 

(e)  She admitted that she intended to work in Hong Kong to repay the loan from her friend.  It was a loan of 50,000 rupiahs per month to support her children in the boarding school.  She was uncertain whether her friend would ask her to repay.

(f)   She could not explain satisfactorily why did she not arrange work legally before coming to Hong Kong.  In fact, she had not tried to find work in Indonesia.

Judicial Review

10.The applicant filed the leave application on 6/5/2019.  In her affirmation, she did not specify any error in the TCAB decision. 

11.This court fixed a hearing on 8/11/2021.  The applicant did not attend.  The notice of hearing was sent to her last known address as recorded in the Form 86.  There was no returned mail.  She had written to this court on 26/5/2021 and 18/8/2021 stating the grounds of her leave application.  The latter was in response to the court’s invitation to update her particulars.[5]  This court was satisfied the address was correct and proceeded to deal with her leave application on paper.

12.The gist of her complaint according to her letters was that the hearing bundle was in English.  It was served on her shortly before the TCAB appeal.  She was unable to find interpretation assistance.  The TCAB relied on news reports which were not authentic and hearsay in nature.  The TCAB failed to consider the serious bribery problem in Indonesia.

13.The adjudicator disbelieved the applicant’s evidence.  The adjudicator rejected that there was an unpaid debt of her husband.  In the circumstances, the applicant’s claim failed on credibility.  There was no need for the adjudicator to consider any COI or news reports as the Director did.

14.The most important documents in the hearing bundle were the decision of the Director and the NCF.  They were compiled or explained to the applicant with the assistance of an interpreter through the DLS.  The applicant should have a reasonable understanding of the content.  The applicant could communicate with this court in English.  Her Form 86 and supporting affirmation were in English.  This indicated that she could arrange language assistance herself.  In any event, she had responded to the questions of the adjudicator. There was no record that she could not understand the proceedings.

15.The adjudicator had analyzed her evidence in detail.  There were fundamental inconsistencies which undermined her credibility.  She was given ample opportunities to explain.  The adjudicator was not satisfied with her reasons. I agree with the findings of the adjudicator.  In my view, there is no error of law and procedure.  Given the evidence submitted by the applicant, I find the TCAB decision reasonable.

Conclusion

16.In my judgment, the leave application is not reasonably arguable. There is no reasonable prospect of success.  I refuse leave for judicial review.

Dated the 18^th day of January 2022.

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