Frisca Ayudya Aryani and Another v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office and Another

CACV 475/2018

[2019] HKCA 22

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 475 OF 2018

(ON APPEAL FROM HCAL 1072/2017)

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Before: Hon Yeung Acting CJHC and Poon JA in Court

Date of Hearing: 2 January 2019

Date of Judgment: 9 January 2019

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J U D G M E N T

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

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 14 September 2018, refusing to grant leave to the applicants to apply for judicial review.  The 1^st and 2^nd applicants are Indonesian Nationals.  The 1^st applicant first came to Hong Kong on 13 October 2004 and worked as a foreign domestic helper until 28 September 2006 when she departed.  She last entered Hong Kong on 11 January 2007 and was permitted to remain as a visitor for 30 days.  She did not depart and overstayed since 11 February 2007.  On 25 June 2013, she was arrested by the police and was sentenced to a four months’ imprisonment.  The applicant was then referred to the Immigration Department for investigation and on 19 March 2014, she lodged her non-refoulement claim.

2.The 2^nd applicant is the 1^st applicant’s son.  He was born in Hong Kong on 14 October 2009 out of wedlock.  On 7 March 2016, the 1^st applicant filed a non-refoulement claim and on behalf of the 2^nd applicant, on the same basis of her own claim.

3.The 1^st and 2^nd applicants’ claims were based on the 1^st applicant’s fear that she and her son would be killed by the money lender for her failure to repay the debt if they were to return to Indonesia.  She also feared that her son, as an illegitimate child born out of wedlock, would be expelled from the Indonesian community.

4.By a Notice of Decision dated 10 August 2016, the Director of Immigration (“the Director”) decided against the 1^st and 2^nd applicants’ claims.  The decision covered BOR 3 risk, torture risk, and persecution risk.  By a further decision of 11 August 2017, the Director also rejected the 1^st and 2^nd applicants’ claims on BOR 2 risk.

5.The 1^st and 2^nd applicants appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing on 18 October 2017, the Board dismissed the appeal on 30 November 2017.  The Board found at [32] to [44] of its decision that the 1^st applicant’s account of event relating to the money lender and the alleged difficulties in repaying the loan in Indonesia entirely lacked the most basic levels of coherence, details and credibility and her oral evidence was vague and contradictory. Further, she was unable to recall and explain how she learnt about her husband’s death and whether her husband died in an accident or of an illness and that aspect of her evidence fatally undermined her credibility.  The Board concluded that the 1^st applicant’s case was plainly a fabrication and no credence could be given to it.  As for the 1^st applicant’s concern that her son would be discriminated in Indonesia because of his status, while the Board accepted that a single woman with a child born out of wedlock might face certain level of discrimination in the community particularly in rural areas, it would not rise to the level of serious harm that would put the 1^st and 2^nd applicants’ claims within any of the applicable grounds.

THE JUDGE’S DECISION

6.On 14 December 2017, the 1^st and 2^nd applicants sought leave to apply for judicial review.  The intended judicial review was in respect of the Director’s and the Board’s decisions.  In the 1^st applicant’s supporting affirmation filed on the same day, she put forward the following grounds for her intended challenge (as summarized by the Judge at [13] of the CALL-1 Form) :

(1)  lack of legal representation in their appeal before the Board;

(2)  lack of language assistance in not providing them with any translation of their non-refoulement claim to enable them to find out if the interpreter had translated the basis of their claim properly;

(3)  failure on the part of the Director to give proper explanation for rejecting their claim under BOR 2 risk;

(4)  lack of fair hearing on the part of the Director for rejecting their claim under BOR 2 risk in a proper or fair manner, and for failing to give reason as to why the attendance of the Director or his representative at their appeal hearing before the Board was not required.

7.On 14 September 2018, the Judge gave his decision refusing to grant leave to the 1^st and 2^nd applicants to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [14] – [20] for his refusal to grant leave :

“ 14. For the complaint in ground (1) of not being provided legal representation in their appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

15. The applicants already had the benefit of legal representation in presenting their case to the Director, and A1 was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without any difficulty. I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.

16. As for the complaint under ground (2) of not being provided with a translation of their NCF, it is clear that their NCF was completed on A1’s instructions to their legal representation from DLS, and that she was assisted by an interpreter at the appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of their claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicants simply speculative and without merit.

17. Regarding ground (3) it is plainly wrong for the applicants to claim that no explanation was given by the Director in rejecting their claim under BOR 2 risk, which the Director clearly did in paragraphs 4 – 6 of his Further Decision in which the applicants’ previous representation and available evidence were again considered by the Director in the absence of their response to an earlier invitation for them to submit additional facts which may be relevant to their claim under BOR 2 risk, and with reasons given for his rejection of their claim. There is simply no merit in this ground of the applicants.

18. As for the complaint under their last ground over the non-attendance of the Director at their appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for the appeal which is a rehearing of the applicants’ claim to be before a different person is actually a safeguard for fairness, and I fail to see how they could be prejudiced or adversely affected by the non-attendance of the Director at their appeal hearing before the Board. There is also no basis or merit in this ground of the applicants either.

19. 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 applicants’ claim.

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

8.In the Notice of Appeal filed on 26 September 2018, the 1^st and 2^nd applicants put forward the following grounds of appeal :

“ We are not satisfied with the decision because this time we can’t go back to our country. Please help us to protect our life and give us stay in Hong Kong until our problem will be solved.”

9.In the skeleton submissions lodged by the applicant on 26 November 2018, she set out the basis of her non-refoulement claim which were the same as put before the Director and the Board.

10.We heard the appeal on 2 January 2019.  The applicants did not make any oral submissions.

DISCUSSION

11.In the determination of an appeal, we focus on the decision of the Judge and we would only reverse that decision if the 1^st and 2^nd applicants can demonstrate that the Judge made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong, see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

12.With the aforesaid principle in mind, we find that the 1^st and 2^nd applicants have failed to put forward any meritorious ground of appeal.  They have failed to identify any error in the Judge’s decision.  They just repeated the basis of their non-refoulement claims which had been duly considered and rejected by the Director and the Board.  The Judge had rightly found that the Director and the Board had carefully considered the 1^st and 2^nd applicants’ case after a rigorous examination and anxious scrutiny.  He was entitled to conclude that both the Director and the Board had adhered to the high standard of fairness and there was no error of law or procedural unfairness in either of them: see [19] of CALL-1 Form.  We agree with the Judge that the applicants’ case was not reasonably arguable and leave to apply for judicial review should not be granted.

13.For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

The 1^st and 2^nd applicants, unrepresented, acting in person