Re Suparti

CACV 18/2019

[2019] HKCA 492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 18 OF 2019

(ON APPEAL FROM HCAL 223 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 Bruno Chan given on 11 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 9 February 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 30 May 2016 and 11 July 2017 rejecting the applicant’s non‑refoulement claim.

Background

2.The applicant is a national of Indonesia.  She entered Hong Kong on 26 August 2007 to work as a foreign domestic helper.  She overstayed and was arrested by the police on 12 October 2012.  She lodged a non‑refoulement claim on 12 March 2014. 

3.The applicant’s claim was based on fear of being killed by her husband.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL‑1 Form.  Essentially it is said that the husband threatened to kill the applicant in 2007 during an episode of domestic violence and again in 2009 threatened over the telephone to kill her.

4.By a Notice of Decision dated 30 May 2016, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 3 risk,^[1] the persecution risk,^[2] and the torture risk.^[3]

5.By a Notice of Further Decision dated 11 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 November 2017, the Board dismissed the appeal on 9 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non‑refoulement protection.

7.At [45] of the Board’s Decision, it was recorded that the applicant confirmed that the only thing she feared was being killed by her husband because he had said he would kill her if she returned without money.  At [56] of the Board’s Decision, the Board held that there is no real risk of the applicant being subject to any of the proscribed risks upon her return.  The Board was also satisfied at [55] that state protection would be available for the applicant and at [75] that internal relocation would be viable.

The deputy judge’s decision

8.The applicant filed a form 86 on 13 February 2018 which contained no ground for seeking relief.

9.In the affirmation in support of the leave application dated 13 February 2018, the applicant advanced several grounds for judicial review which are summarised below:

(1)   procedural impropriety in the Adjudicator’s failure to carry out sufficient independent inquiry in the relevant COI including failing to conduct a critical analysis of the relevant COI or to provide adequate reasons as to why certain information which supported its decision was preferred over other contrary information, cheery‑picking from the COI to support its conclusion, and failing to take into consideration that the government of Indonesia failed to protect its citizens from domestic violence due to the corruption of its police;

(2)   error/misdirection in law in failing to apply or properly apply paragraph 2 of the UN Committee’s General Comment No 2 concerning the obligation of a signatory state to protect its citizens;

(3)   error/misdirection in law in failing to consider the psychological impact of the injuries and abusive language suffered by the applicant; and

(4)   error/misdirection in law in failing to assess the applicant’s fear under BOR 3 risk in assessing her credibility in the consideration of her claim.  

10.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 for refusing leave to apply for judicial review at [13] to [16] of the CALL‑1 Form:

“ 13. These [referring to the applicant’s grounds for applying for judicial review] are however all very broad and vague assertions of the applicant containing several pages of key words and phrases but 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 in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how the adjudicator erred in assessing her claim under BOR 3 risk. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, of which they were entitled to do based on the evidence available to them and in the absence of any legal error or procedural unfairness or irrationality being clearly or properly identified by the applicant in the decisions, there is simply no justification to afford her with non‑refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. 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.

16. 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.”

Grounds for appeal

11.In the Notice of Appeal dated 15 January 2019 the applicant did not set out any proper ground of appeal and simply said that she is not satisfied with the decision because it will lead her life towards danger and she has problems in her own country.

12.In her skeleton submissions dated 13 March 2019, the applicant states that “they” (without specifying who “they” are) will locate her and come to her place and that if she returns 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.

13.The applicant agreed by a letter of 15 January 2019 that the appeal could be heard by two judges.  We heard the appeal on 17 April 2019.

Discussion

14.The applicant did not identify any error in the deputy judge’s decision, and failed to provide 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 or for this appeal.  In particular, she has failed to impugn the holding that the risk she alleges is a localized one and that it would not be unsafe for her to relocate to any part of Indonesia.  In any event, the Board has adequately evaluated and dismissed this aspect of her claim in the Board’s Decision, and concluded that the verbal death threat by the husband did not mean very much and further that there is sufficient systemic protection for victims of domestic violence in Indonesia.

15.At the hearing we were informed by the applicant that she had since been married and an application had been made to the Director of Immigration for a dependant’s visa for her.  This however does not in any way affect the issues in this appeal.

16.For the above reasons we have concluded there is no merit in the appeal, which is dismissed accordingly.

The applicant appeared in person