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Hindun Mardiatul Ulum Saningwar v Torture Claims Appeal Board / Non-refoulement Claims Petition Office [Decision On Leave Application]

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date17 March 2020
Neutral Citation[2020] HKCFI 434
Year2020
Judgement NumberHCAL960/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL960/2018 HINDUN MARDIATUL ULUM SANINGWAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 960/2018

[2020] HKCFI 434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 960 of 2018

BETWEEN

Hindun Mardiatul Ulum Saningwar Applicant
and
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office		 Respondent
and
Director of Immigration Interested Party

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 Bruno Chan:

1. time be extended for the Applicant’s late Notice of Application for Leave to Apply for Judicial Review (“Form 86”); and

2. leave be granted to the Applicant to apply for judicial review of the Torture Claims Appeal Board (“the Board”)’s decision dated 11 August 2017 on the grounds as stated in the Form Call-1.

It is further directed that:

3. the Applicant shall within 14 days of the order herein file an originating summons, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1. The Applicant is a 46-year-old national of Indonesia who last arrived in Hong Kong on 21 December 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 7 January 2010 which was subsequently extended to 21 December 2010, but it was terminated on 3 August 2010 after she was arrested by police for theft, for which she was convicted and sentenced to prison for eight months, and on 6 October 2010 she raised a torture claim with the Immigration Department, and after it was rejected, she then raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband and/or by her creditor for failing to repay her loans. She was subsequently released on recognizance pending the determination of her claim.

2. The Applicant was born and raised in Sumberjati, Silo, Jember, East Java, Indonesia. After leaving school she first worked as a sewer, and in 1998 in order to help her family to pay off its many loans, in 1998 she started to work as a foreign domestic helper in Hong Kong.

3. In 2005 when she returned to Indonesia when she met her husband whom she later married in 2006, but soon she found her husband to be abusive towards her by frequently beating her with his belt over financial issues, and in order to avoid her husband the Applicant in 2008 returned to work as a foreign domestic helper in Hong Kong by borrowing several loans from a fellow foreign domestic helper to pay for her employment agent, with the loans repayable by monthly instalments with interest from her salaries.

4. However, in August 2010 she lost her employment after being arrested by police for theft for which she was subsequently convicted and sentenced to prison for eight months,and asa result she was unable to repay her loans for which she was threatened by her creditor that she would be killed upon her return to Indonesia, and also due to her fear of abuse by her husband, she therefore raised her torture claim and then a non-refoulement claim for protection, for which she completed a Supplementary Claim Form on 11 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5. Whilst being released on recognizance pending the determination of her claim, the Applicant was arrested again on 25 April 2016 for possession of a false instrument and for undertaking unauthorized employment, for which she was convicted on 5 July 2016 and sentenced to prison for 15 months at the Lo Wu Correctional Institution.

6. By a Notice of Decision dated 25 November 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7. In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband or her creditor to the Applicant upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that her problems with them were domestic or personal monetary disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband or creditor to locate her.

8. Section 37ZS of the Ordinance provides that a claimant who wishes to appeal against the Director’s decision, the notice of appeal must be filed with the Torture Claims Appeal Board (“the Board”) within 14 days after notice of the decision is given to the claimant unless late filing of the appeal is allowed by the Board, and that...

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