Re Marmi Bt Mardi Satimun

CACV 19/2019

[2019] HKCA 471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 19 OF 2019

(ON APPEAL FROM HCAL 533/2018)

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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 Josiah Lam given on 8 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 21 March 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 23 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Indonesia.  She entered Hong Kong on 23 January 2015 to work as a foreign domestic helper.  She overstayed after her contract was terminated and surrendered to the Immigration Department on 16 March 2016.  She lodged a non-refoulement claim on 21 September 2016. 

3.The applicant’s claim was based on threats from a man who threatened to kill the applicant unless she agreed to marrying him.  The details of the applicant’s claim have been summarised by the judge at [4] to [9] of the CALL-1 Form.

4.By a Notice of Decision dated 23 January 2017 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 2 risk^[1], 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 1 February 2018, the Board dismissed the appeal on 21 March 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [88] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [114] that internal relocation would be viable.

The deputy judge’s decision

7.The applicant filed a Form 86 on 3 April 2018 which contained no ground for seeking relief.

8.In the affirmation in support of the leave application dated 3 April 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)   the Board and the Director failed to conduct sufficient independent inquiry and critical analysis of relevant country-of-origin information (“COI”). They cherry-picked information and failed to explain how they decided on their preference of COI;

(2)   the Board and the Director failed to properly consider the UN Committee General Comment No.2 regarding the issue of state protection;

(3)   the Board and the Director failed to consider her psychological strain;

(4)   the Board and the Director misdirected themselves in law and took into account irrelevant considerations. They were wrong to refuse her claim.

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 [32] to [40] of the CALL-1 Form:

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

33. 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.’

34. The Applicant complained the Adjudicator failed to conduct sufficient independent inquiry of relevant country-of-origin information (‘COI’). He also failed to conduct critical analysis of COI and cherry-picked information to reach conclusions against her.

35. The Adjudicator found the Applicant’s claim incredible. He did not accept the Applicant faced any risk that warranted non-refoulement protection. The Adjudicator only referred to some basic COI to say internal relocation was available to the Applicant in any event. The cited information was factual and no critical analysis was required. There was no evidence the Adjudicator cherry-picked information. His conclusion on internal relocation was not Wednesbury unreasonable.

36. The Applicant complained the Adjudicator failed to consider properly the issue of state protection. The Adjudicator need not consider such issue since he did not accept the Applicant’s claim of risk.

37. For the same reason, the Adjudicator need not consider the psychological impact of the Applicant's complained situation. The Adjudicator did not accept the Applicant faced any risk so there was no fear to be concerned with.

38. The Applicant accused the Adjudicator misdirected himself in law and took into account irrelevant considerations. The Applicant failed to be specific. There was no evidence to support such complaints.

39. 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

40. 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 15 January 2019, the applicant advanced the following grounds of appeal:

(1)   failure to conduct sufficient inquiry and critical analysis of the relevant COI material;

(2)   failure to consider the concept of extended state acquiescence;

(3)   failure to consider psychological harm.

11.In her skeleton submissions dated 26 March 2019, the applicant reiterated why she said it was unsafe for her to return.  She said that the Board and the Director failed to make sufficient inquiries into country of origin conditions, and failed to take account of relevant conditions such as the fact that she was placed in mortal danger by her assailants, that she and her family had received death threats from money lenders (although we note that her claim was not based on such threats), and that she was placed under psychological stress.

12.Although the skeleton submissions were submitted late, the applicant was informed that the hearing would proceed.  Accordingly, we heard the appeal on 17 April 2019. At the hearing, the applicant adopted her Notice of Appeal and skeleton submissions, and requested us also to take into account the fact that she had married, and that her husband had applied for her to obtain a dependant’s visa to remain in Hong Kong.  She produced a letter from the Director acknowledging the application, and advising as to the likely time-frame for a decision.

Discussion

13.The grounds of appeal set out in the Notice of Appeal are very vague and the applicant did not identify the subject of her complaints.  It cannot therefore be said that the applicant has identified any error on the part of the judge.  In the skeleton submissions, the applicant only identified alleged errors committed by the Board and the Director but did not identify any error on the part of the judge.  The applicant has thus failed to provide any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

14.Further, the fact that the applicant has recently married and is in the process of seeking a dependant’s visa is not a matter that bears on her non-refoulement claim, and is not something that gives rise to any valid ground of appeal.  Her application for a dependant’s visa on the basis of her marriage is an entirely separate matter, which will no doubt be considered on its own merits by the Director.  

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

The applicant acting in person