Re Ai Dodoh

CACV 350/2018

[2018] HKCA 874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 350 OF 2018

(ON APPEAL FROM HCAL 763/2017)

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Before: Hon Barma JA and L Chan J in Court

Date of Hearing: 21 November 2018

Date of Handing Down Judgment: 27 November 2018

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Woodcock given on 27 July 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 6 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 3 November 2015 and 3 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Indonesia.  She entered Hong Kong on 21 October 2011 to work as a foreign domestic helper.  She was permitted to remain until 14 days after 18 February 2013 when her contract was terminated prematurely.  She overstayed and was arrested by the police on 24 October 2013.  She lodged a non-refoulement claim on 6 November 2013. 

3.The applicant’s claim was based on threats from a loan shark.  The details of the applicant’s claim have been summarised by the judge at [2] to [7] of the CALL-1 Form.

4.By a Notice of Decision dated 3 November 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.By a Notice of Further Decision dated 3 July 2017, the director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against her.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 8 September 2017, at which it considered both Decisions of the Director, the Board found that the applicant’s case was not credible. Further, the Board considered that even accepting her evidence, the matters concerned a private dispute to which she was not party, and that she had not herself been threatened on targeted by the loan shark so that there was no basis for non-refoulement protection.  The Board’s Decision covered all four grounds for non-refoulement protection.

The deputy judge’s decision

7.The applicant filed a Form 86 on 13 October 2017 which contained no ground for seeking relief. 

8.In the affirmation in support of the leave application dated 13 October 2017, the applicant advanced various grounds for judicial review which are summarised below:

(i)   the Board failed to give reasons for rejecting the applicant’s BOR 3 risk claim;

(ii)   both the Director and the Board erred in law for failing to take into account the psychological strain on the applicant;

(iii)   the Director failed to give reasons or conduct sufficient enquiry into relevant Country of Origins information (“COI”);

(iv)   both the Director and the Board failed to apply paragraph 2 of the UN Committee against Torture General Comment No.2;

(v)   both the Director and the Board committed errors of law and misdirected themselves in law; and

(vi)   no sufficient explanation was given as to why the applicant would not suffer a genuine risk upon her return.

9.After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL-1 Form:

“12. I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application. I find no substance in the grounds of this application; they are not substantiated. I find the Director’s and the adjudicator’s decision is to be without fault.

13. I have considered the applicant’s supporting affirmation and the grounds therein. The first ground accuses the adjudicator of the TCAB of procedural impropriety; a failure to give reasons for rejecting the applicant’s BOR 3 risk claim. The adjudicator clearly gives reasons for finding the applicant not credible but also at the same time says that even if she was telling the truth her evidence does not establish that the ill treatment, whether physically or mentally, which she fears she would suffer reaches a minimum level of severity and that she faces a genuine and substantial risk of being subjected to such ill treatment. To support this, he looks at her evidence of past events, the loan shark has not physically seriously ill treated her. There is no merit in this ground.

14. The second ground accuses both the Director and the adjudicator of an error in law, for failing to take into account the psychological strain on the applicant. This was not put forward as part of the applicant’s case nor was it so evident or obvious that they should have taken into account. There is no merit in this ground.

15. The third ground accuses the Director of procedural impropriety because he failed to give reasons or conduct sufficient enquiry into relevant COI conditions. There are no particulars to support this ground and a reading of the Director’s decision clearly shows otherwise therefore, there is no merit in this ground.

16. The last three grounds are convoluted, without particulars and are general statements of discontent that the decision-makers have dismissed the applicant’s claim and appeal without good reason or sufficient explanation. I am satisfied both the Director and the adjudicator have given full reasons for their decisions.

17. I am satisfied there are no errors of law by either the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

18. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

10.In the Notice of Appeal dated 30 July 2018 the applicant advanced the following grounds of appeal:

(1)   the Board failed to obtain all the COI to make independent assessment;

(2)   failure to inquire into the effectiveness of the steps taken by the Indonesian authorities in combating violence from loan sharks (§18 UN General Comment No 2);

(3)   no sufficient basis to conclude that the appellant would not be at risk of torture and/or CIDTP upon refoulement.

11.In her skeleton submissions dated 16 October 2018, the applicant submitted that both the Board and the Director failed to make sufficient inquiries into the COI.  They erred in taking into account irrelevant matters and failed to consider relevant matters.

12.The applicant agreed by a letter of 30 July 2018 that the appeal could be heard by two judges.  We heard the appeal on 21 November 2018.

Discussion

13.All the grounds in the notice of appeal and the skeleton submissions are clearly concerned with alleged errors committed by the Board and the Director.  They do not identify any error in the judge’s decision, and are thus not viable grounds of appeal. 

14.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person