Re Wiwin Rudianingsih

CACV 331/2018

[2018] HKCA 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 331 OF 2018

(ON APPEAL FROM HCAL 852/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 13 July 2018 refusing to grant leave to her to apply for judicial review.

Background

2.The applicant is a national of Indonesia.  She first came to Hong Kong to work as a domestic helper in 2003.  According to the record of the Immigration Department, her last arrival was on 30 May 2008 with a permission to remain as a domestic helper for two years.  Her employment contract was prematurely terminated on 18 June 2008 and was required to depart Hong Kong on or before 2 July 2008.  She did not depart as required, but overstayed illegally.  She first lodged her claim for non-refoulement protection on 13 May 2014.  She then surrendered to the Immigration Department on 17 July 2014 and lodged her non-refoulement claim again on the same date. Her claim was based on the fear that, if she returned to Indonesia, she would be harmed or killed by her father and brother because she married a non-Muslim man in Hong Kong in 2012.  At the oral hearing before the Torture Claims Appeal Board, the applicant also alleged that her ex-husband (who had remarried twice with two other women) had looked for her and wanted to extort money from her if refouled. 

3.The history of the applicant’s case is set out at [2] to [4] of the judge’s observations in [2018] HKCFI 1457.

4.By two notices of decision dated 17 June 2016 and 17 July 2017 respectively, the Director of Immigration assessed the applicant’s claim and determined it against her.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3], and the latter the BOR 2 risk[4].

5.The applicant appealed to the board against the director’s decisions.  An oral hearing was held on 5 September 2017 and the applicant testified therein.  Although the board found that the applicant was by-and-large a reliable witness, it did not accept the applicant’s evidence in relation to her ex-husband to be reliable.  The board also found that, due to the lapse of time, there would not be any substantial grounds for believing that the applicant would face a real risk of being subjected to ill-treatment upon her return to Indonesia.  Furthermore, the applicant’s father, or brother, or other family members were not agents of the state and did not act in any official capacity.  It was found that state protection was available to the applicant and internal relocation is a viable option for her.  Accordingly, the board dismissed the appeal on 3 November 2017.

The judge’s decision

6.On 7 November 2017, the applicant applied to the court for leave to judicial review against the decisions of the director and the board.  The form 86 contained no grounds for seeking relief. The applicant advanced the following grounds in her supporting affirmation dated 7 November 2017[5]:

(1)  Procedure impropriety for the board’s failure to properly assess the applicant’s fear from her ex-husband and from her father and brother;

(2)  Procedural impropriety for the director’s failure to conduct sufficient inquiry into the country of origin (“COI”) condition in her home country;

(3)  Illegality/error/misdirection of law for applying irrelevant considerations; and

(4)  No sufficient basis to conclude that the applicant would not be subjected to torture or other ill-treatments upon refoulement.

7.After a hearing held on 16 May 2018, the judge dismissed the applicant’s leave application on 13 July 2018.  The judge’s reasons in refusing to grant leave to apply for judicial review were set out in [11] – [14] of the CALL-1 form as follows:

“ 11. These are all very broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or what irrelevant considerations were applied by them, or in what way did the Director fail to make sufficient inquiry into COI as to the situations in Indonesia when even in the applicant’s own case that her dispute with her father and brother was a private family matter with nothing to do with any situations such as corruptions of the state or police, effectiveness of the government or judicial system, or any human rights violations in Indonesia. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

12. As both the Director and the Board in their decisions accepted the applicant’s marriage to her present non-Muslim husband in Hong Kong as the basis of her claim of fear of harm from her father and brother, but once they were able to establish that state protection and reasonable internal relocation alternatives were available to the applicant upon her return to Indonesia in other areas away from her home district and beyond the capability or resources of her family to locate her, it is plain to me that the Director and the Board were perfectly entitled to conclude that there was no justification to afford the applicant non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526. I therefore do not find any basis or merits in any of these grounds of the applicant.

13. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

14. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

The Appeal

8.The applicant filed a notice of appeal on 23 July 2018, and advanced therein the following grounds of appeal:

(1)  Procedure impropriety in that the board had failed to properly assess the applicant’s fear from her family and from her ex-husband;

(2)  Procedural impropriety in that the director had failed to conduct sufficient inquiry into the COI conditions in her home country; and

(3)  The applicant was not given any legal assistance in her appeal to the board, as well as the assessment of her BOR 2 risk before the director, whereby the high standards of fairness as laid down by the Court of Final Appeal were not met.

9.By a letter dated 23 July 2018, the applicant agreed that this appeal be heard before a two-judge court.

10.In compliance with the directions of the court, the applicant lodged her written submissions on 14 September 2018.  The applicant reiterated in her submissions that her father and brother would disown her and would take her life because she married a non-Muslim man in Hong Kong. 

11.We heard the appeal on 19 October 2018.

Discussion

12.Recently, in Re Tutul [2018] HKCA 552 and Re Litoun Mounsy [2018] HKCA 537, this Court has reiterated the following general propositions in dealing with appeals in non-refoulement cases:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the director and the board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the board due to the seriousness of issue at hand, the Court should not usurp the role of the board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the board (and the director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489. In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the board or the director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(5)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the board afresh as if it is a fresh application for judicial review.

13.Since this is an appeal, we should focus on the decision of the judge.  As mentioned above, in absence of any viable ground to reverse his decision, this Court should not intervene as if it were sitting at first instance considering the case afresh. The first ground of appeal is a regurgitation of the ground duly rejected by the judge.  In the appeal, the applicant fails to identify any error on the part of the judge in rejecting this ground.  Accordingly, there is no basis for this Court to re-visit the judge’s decision.

14.Furthermore, as held in Re Moshsin Ali [2018] HKCA 549, the decision of the board has overtaken the director’s decisions.  Judicial review, if granted, should focus on the board’s decision.  Accordingly, the second ground of appeal cannot constitute a valid ground for seeking relief in the intended application for judicial review. A fortiori, it cannot be a valid ground of appeal against the decision of the judge.

15.The ground relating to the lack of legal representation was not raised in the court below.  As mentioned above, this Court will not generally entertain new argument which had not been canvassed at the Court of First Instance.  We do not see any reason to depart from this course in the present case.  In any event, as it has been held, the high standard of fairness does not prescribe that a non-refoulement claimant has absolute right to legal representation at all stages of the process: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  The applicant had already had legal representation provided by the Duty Lawyer Scheme during the first part of proceedings before the Director.  We do not find it reasonably arguable to challenge the fairness of the process due to the lack of legal representation in the director’s determination of her BOR 2 risk and during the appeal before the board.

16.The judge, after rigorous examination and anxious scrutiny, did not find any public law grounds to challenge the board’s finding.  In this appeal, the applicant did not advance any effective arguments against the analysis of the judge.  Having considered the materials available before us, we cannot find any legal errors in the judge’s analysis either.  We agree with the judge that leave should not be granted to the applicant to apply for judicial review against the decision of the board.

17.We dismiss the appeal accordingly.

The applicant appearing in person