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

HCAL 1892/2018

[2022] HKCFI 428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1892 of 2018

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:

1.      Application to add “Ssekimwanyi Peace Nakimwanyi” as the 2^nd applicant to the Form 86 be granted;

2.      Extension of time for application for leave to apply for Judicial Review be refused; and

3.      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 on 17/3/2012 as a domestic helper. Her contract was terminated on 4/5/2012.  She overstayed until arrested by the police on 10/9/2012.  She gave birth to the 2^nd applicant (A2) on 18/10/2012.  She raised the non-refoulement claim in this case for herself and her daughter on 14/3/2014.

2.The non-refoulement claim for A1—A2 was dismissed by the Director on 5/12/2016. Their appeal was dismissed by the TCAB on 23/11/2017.  She filed the leave application on 10/9/2018 for herself only. She was about 6½ months out of time.

Background

3.A1 was born on 15/8/1975 in Central Java, Indonesia [1]. She had education for 9 years.  She had divorced twice with 2 sons.  She was a domestic helper for 16 years in Singapore, Saudi Arabia and Hong Kong. Her daughter (A2) was born in Hong Kong in 2012. She and her family had not joined any organization or group.  She had not been charged or imprisoned in Indonesia.

4.Around 1996, her 2^nd husband borrowed a total of 150 million IR [2] from 2 creditors. She did not know the detail. He asked her to repay the loan for him. He assaulted her whenever she declined. She did not report to the police. She recovered in a week or so. The creditors came to her home asking for repayment. They threatened her and damaged their properties. She worried about the well-being of her sons and did not report.

5.She left Indonesia in mid-1996 to work in Singapore. When her contract was completed, she returned to Indonesia and stayed with her brother in Cilacap for a month before leaving Indonesia again.

6.In 1998, she went to work in Saudi Arabia. She wanted to stay away from her 2^nd husband and the creditors. She returned to Indonesia in 2001 and stayed with a friend in Jakarta for a few months.

7.In 2002—2006, she worked in Hong Kong as a domestic helper. She finally divorced her 2^nd husband in 2005. He was furious and threatened to harm her if she returned to Indonesia.

8.She returned to Indonesia in 2006 and stayed with her brother in Cilacap. She left for Hong Kong again in 2007. The employment ended in 2012. She went to Macau while waiting for a new contract. She came to Hong Kong again in March 2012.

9.Since mid-2012, she cohabited with the father of A2. She used to be a Muslim. She had since changed to Christianity. Her mother was angry about this change and would not accept her if she returned home.

10.She believed her life would be in danger if refouled. Her family was angry about her change of religion. They would not accept her and A2. The Muslim community would also harm her. She also feared that her 2^nd husband and the creditors would harm her.

11.The authorities would not protect her as they would discriminate her because of religion and A2. She did not know any NGO which could help. She was ignorant about the law in Indonesia.

12.The Muslim community could locate her. She might be able to relocate to Jakarta and other cities where Christians were the majority. However, her 2^nd husband and her father could still locate her.

The Decision of the Director in relation to A1—A2

13.The Director found that there was low real risk that A1—A2 would be harmed or killed by her 2^nd husband and the creditors for the following reasons:

(a)   Her 2^nd husband raised the loan around 1996.  The creditors pursue the loan sometime in 1996.  They only threatened her.  She was not harmed.  She was able to work in the next 16 years until 2012.  There was no injury amounting to a minimum level of severity. There was no real risk of harm in future.

(b)   There was no evidence that her 2^nd husband and the creditors were still interested in her after her divorce in 2005.  It was uneventful when she returned to Indonesia three times in 1998, 2001 and 2006.  There was no imminent danger of harm.

(c)   A1 had lost contact with her parents since 2012.  There was no evidence that her parents had threatened to harm her and A2.  It was speculation that she would face discrimination if returned to Indonesia.

(d)   The loan was a private dispute between her 2^nd husband and the creditors.  There was no evidence that any government official was involved. A1 had chosen to stay with her 2^nd husband in the past. She had never sought assistance from the police.  It was not the case that the Indonesian authorities failed to discharge their duties.

(e)   The Director noted that there was serious corruption and human rights abuses in Indonesia.  Single mothers were regarded as a disgrace and rejected by the society. Domestic violence was common and often not reported. However, there were practical measures by the government to protect its citizen. Funding from foreign countries were available for training police to improve efficiency. The KPK [3] had carried out investigations and prosecutions of corruption at all levels of the government.  The National Ombudsman Commission and other bodies [4] were tasked to handle complaints from citizens on human rights abuses. There were NGO which provided integrated services and shelters for victims of domestic violence.[5] There were organizations providing counselling and literacy training to female heads of households.[6] The law had been amended to tackle violence against women and children. The Director concluded that there was reasonable State protection. There were avenues for A1 and A2 to seek assistance.

(f)   The law in Indonesia allowed relocation.  There were organizations to help women who encountered problems from domestic settings.[7] Indonesia was about 1.9 million km ² with a population of around 250 million.   A1 might move to other cities like Jakarta and Papua.   The Director concluded that it was not unduly harsh for A1 to relocate.  A1—A2 could seek assistance from various NGO.

14.The Director rejected the claims of A1and A2 on all grounds on 5/12/2016.

The Decision of TCAB on the appeal of A1—A2

15.A hearing was fixed on 21/9/2017.  A1 gave evidence with the assistance of an interpreter.

16.The adjudicator reminded himself that he should separately consider the claims for each applicant on their own merits.[8] The adjudicator identified 2 aspects which needed specific consideration, namely, whether A2 would be at risk of harm as an illegitimate child and whether she would be at risk being a Christian. A1 told the adjudicator that A2 would not be harmed by others in Indonesia. However, they did not like A2.

17.The adjudicator made the following findings based on which to reject the claims of both applicants on 23/11/2017:[9]

(a)   A1 had no further contact with her 2^nd husband after the divorce in 2005.  It was almost 2 decades, both of them must have lost interest in each other.  The adjudicator did not accept that her 2^nd husband would still be interested to both applicants.

(b)   Similarly, the loan was outstanding for so many years. There was no evidence that the creditors had continued pursuing A1 for repayment except in 1996. The adjudicator did not accept both applicants would still be of interest to the creditors.

(c)   A1 could not tell the adjudicator her favourite Bible story. She had stopped going to church last year.  She confirmed that she was never baptised. She chose to affirm instead of swear an oath before giving evidence before the TCAB. The adjudicator considered that A1 did not identify herself as a Christian. 

(d)   The adjudicator accepted that A2 was baptised despite there was no documentary proof.  However, this fact alone would not result in A2 being identified as Christian in Indonesia.  A1 would not raise this as she herself was not a Christian.

(e)   The adjudicator pointed out that the constitution of Indonesia recognised freedom of religion. The law prohibited conduct which insult or defame a religion. It also prohibited spreading of hatred on the basis of religion. Punishment on conversion to other religion from Islam was rare. The risk that both applicants would subject to harm because of Christian faith was remote. There was no reason for the applicants to move to the hotspots of religious tension such as West Java and Aceh.

(f)   The adjudicator pointed out that the Indonesian government had taken steps to control the abuse of religious differences. There was no real risk of harm to the applicants.

(g)   There was no threat or harm from the parents or other family members. The adjudicator found that the applicants might be rejected but such conduct was not serious enough to amount to real risk of harm.

(h)   While A2 might be mocked as a child born out of wedlock, she was entitled to Indonesian nationality being a child out of wedlock to an Indonesian mother. A2 would not have any difficulty in obtaining a birth certificate. A2 would not be subject to physical harm. The social stigma in other aspects would not reach such severity requiring international protection.

Judicial Review

18.A1 filed the leave application on 10/9/2018.  She was 6½ months out of time. In her affirmation, she raised several grounds:

(a)   She was not given an oral hearing to explain her situation.

(b)   The adjudicator was unfair.

(c)   The adjudicator had not considered that the applicants were unrepresented.

19.In relation to adding A2 to the Form 86, I am aware of the requirement under Order 15 rule 6(5) that no person shall be added as a party after the expiry of any limitation period.  However, in the decisions of the Director and the TCAB, both applicants’ claims were considered.  Given A1’s background, it is understandable that she left out A2 in her leave application.  In my view, it would be in the interest of both applicants for their claims to be dealt with together.  A1 had consented in writing to add A2 to the Form 86. I therefore exercise the discretion to allow the amendment by adding A2 to the Form 86.[10]

20.The applicants were out of time in filing the leave application.  They should have applied for extension of time.  They did not provide any explanation for the delay.  In considering whether there is good reason for the delay, I have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension of time was granted. [11]

21.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.[12]

22.In the TCAB decision, the nationality of A2 was considered. The adjudicator rightly concluded that A2 would be entitled to Indonesian nationality.

23.A2 was born in Hong Kong.  She had never returned to Indonesia.  Given that A2’s claim was derived from A1’s claim, she could not give any evidence in relation to the threats or the surrounding circumstances.

24.As to other aspects such as discrimination, religion and social stigma, the adjudicator found that there would not be any real risk of harm to both applicants. The adjudicator had separately considered the position of A2. His analysis of the evidence was impressive and convincing. I agree with his conclusion. 

25.In my view, there is no issue specific to A2 which has 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.[13]

26.As to the complaints of A1 in her affirmation, I do not find any unfairness in the TCAB proceedings.  A1 was given ample opportunities to answer questions.  She was assisted by an interpreter.  I do not understand why A1 asserted that she was not given an oral hearing to explain her position. As to legal representation, a claimant is not entitled to free legal representation at all stages of the proceedings.  In fact, A1 was assisted by the DLS at the initial stage.  In all, I do not see any substance in A1’s complaint.

27.There is no error of law and procedure in the TCAB decision.   It is reasonable.  There is no merit in the intended judicial review.

Conclusion

28.There is no good reason for extension of time for filing the leave application.  I refuse to extend the time.  The intended judicial review is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for the intended judicial review.

Dated the 10^th day of February 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