Re Etik Iswanti

CACV 15/2019

[2019] HKCA 490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 15 OF 2019

(ON APPEAL FROM HCAL 709 OF 2018)

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Before: Hon Barma JA and G Lam J in Court

Date of Hearing: 17 April 2019

Date of Judgment: 2 May 2019

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J U D G M E N T

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Hon G Lam J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 9 January 2019 refusing the applicant 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 19 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 13 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Indonesia.  She entered Hong Kong on 14 January 2010 to work as a foreign domestic helper.  She overstayed and was arrested by the police on 15 January 2013.  She lodged a non‑refoulement claim on 28 July 2014.

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 [3] to [7] of the CALL‑1 Form.  Essentially she claims that because her parents failed to repay a loan borrowed in 1993 she would be harmed by the lender if she returns to Indonesia.

4.By a Notice of Decision dated 13 January 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk,^[1] the BOR 3 risk,^[2] the persecution risk,^[3] and the torture risk.^[4]

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 22 January 2018, the Board dismissed the appeal on 19 April 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non‑refoulement protection.

6.At [60]‑[65] of the Board’s Decision, the Board found that the applicant’s case was not credible in material respects and concluded at [66]‑[67] that there was no reasonable likelihood or real risk she would be targeted by the creditor if she returns to Indonesia and that there is no reason for the applicant to fear any kind of harm from the creditor.  The Board was also satisfied at [76] that state protection would be available for the applicant and at [68] that internal relocation would be viable.

The deputy judge’s decision

7.The applicant filed a form 86 on 24 April 2018 which contained no ground for seeking relief.

8.In the affirmation in support of the leave application dated 24 April 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)   the Board failed to properly apply paragraph 2 of General Comment No 2 of the UN Committee Against Torture;

(2)   the Board failed to conduct sufficient inquiry of relevant country‑of‑origin information (“COI”);

(3)   the Board failed to give reasons for the assessment of BOR 3 risk and had no sufficient basis to find there was a lack of BOR 3 risk;

(4)   the Board failed to take into account her psychological strain arising from the threats of the loan shark; and

(5)   the Board failed to consider the situation in Indonesia and wrongly decided that internal relocation was viable.

9.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the deputy judge refused to give leave for judicial review.  The deputy judge gave the following reasons at [27] to [35] of the CALL‑1 Form:

“ 27. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

28. A non‑refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul:–

‘ 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 scrutinising 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.’

29. The Applicant complained the Adjudicator failed to consider properly the issue of state protection and failed to conduct sufficient inquiry of relevant country‑of‑origin information (“COI”). She also said the Adjudicator failed to consider the situation in Indonesia and wrongly decided that internal relocation was viable.

30. The Applicant’s complaints are not justified. The Adjudicator did have proper regard of her case and relevant COI before he ruled reasonable state protection and internal relocation were both available to the Applicant. His finding was not Wednesbury unreasonable.

31. The Applicant complained the Adjudicator failed to give reasons for the assessment of BOR 3 risk and had no sufficient basis to find there was a lack of BOR 3 risk. Again, such complaints are not correct. The paragraph under the title ‘BOR 2 & 3 Risks’ was brief. However, it was only a conclusion. The Adjudicator’s decision must be read as a whole. In his preceding paragraphs, the Adjudicator had given detailed reasons for his analysis of the Applicant’s case.

32. The Applicant also complained the Adjudicator failed to take into account her psychological strain arising from the threats of the loan shark.

33. The Adjudicator disbelieved the Applicant was a genuine non‑refoulement protection seeker and did not accept she faced any torture risk, persecution risk, BOR 2 risk or BOR 3 risk. There was no fear of harm or psychological strain found.

34. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non‑refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

35. The Applicant’s complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant her leave for judicial review.”

Grounds for appeal

10.In the Notice of Appeal dated 14 January 2019 all that the applicant set out by way of grounds of appeal is that it is not safe for her to go back to her country.

11.In her skeleton submissions dated 13 March 2019, the applicant continues to assert that “they” will locate her and come to her place if she returns to her country and she may be tortured or killed by her “enemies”, that “they” can bribe the police and that she does not have enough resources to protect herself.

12.The applicant agreed by a letter of 14 January 2019 that the appeal could be heard by two judges.  We heard the appeal on 17 April 2019.

Discussion

13.As set out above, the deputy judge dealt with the applicant’s grounds for applying for leave for judicial review.  The applicant did not identify any error in the deputy judge’s decision, and failed to identify any viable grounds of appeal.  The bare assertion that it is unsafe for her to return is not a proper ground for seeking leave for judicial review.  In any event, the Board has adequately evaluated and dismissed this aspect of her claim in the Board’s Decision.  The Board applied a low standard of proof, following the approach in Karanakaran [2000] Imm. A.R. 271, and only disregarded the applicant’s claims to which it was not willing to attach any credence at all.  Even on this low standard the Board did not find the applicant’s claims credible in significant respects and accordingly found no real risk she would be targeted for serious harm if she returned to Indonesia.

14.There is therefore no merit in the appeal which is dismissed accordingly.

The applicant appeared in person