Ika-kristian v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CACV 13/2019

[2019] HKCA 498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 13 OF 2019

(ON APPEAL FROM HCAL NO 520 OF 2018)

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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) :

INTRODUCTION

1.This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 8 January 2019, refusing to grant leave to the applicant to apply for judicial review.

2.The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 26.  We shall not repeat the same here.

3.Briefly stated, the applicant is an Indonesian national. She came to Hong Kong on 14 June 2013 working as a domestic helper under a 2-year contract.  Her contract of employment was extended and she was allowed to stay until 30 January 2016.  Her second contract was prematurely terminated on 5 June 2015 but she did not depart upon the expiry of her limit of stay.  She was arrested by the police on 18 February 2016 and was referred to the Immigration Department for investigation.  On 27 April 2016, she lodged her non-refoulement claim.  The applicant’s claim was based on her fear that she would be harmed or even killed by her abusive husband and the loan shark who demanded her to settle her husband’s debt.

4.By a Notice of Decision dated 27 October 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

5.The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After the hearing on 8 January 2018, the Board dismissed the appeal on 23 March 2018.  The Board found that the applicant's evidence was implausible and inconsistent with her written evidence in her non-refoulement claim form.  The Board formed that view that the applicant came to Hong Kong for work rather than seeking non-refoulement protection as she only lodged her claim almost 3 years after she came to Hong Kong and until she was arrested by the police.  There was no evidence of state acquiescence and internal relocation would be a viable option.  The Board rejected her non-refoulement claim on all applicable grounds.

THE JUDGE’S DECISION

6.The applicant filed her Form 86 on 29 March 2018 to apply for leave for judicial review against the decisions of the Director and the Board.  Since the Director’s decision was superseded by the Board’s decision and thus not susceptible to judicial review, the Judge only focused on the grounds of intended challenges against the Board’s decision as follows :

(1)   lack of legal representation; and

(2)   lack of language assistance.

7.On 8 January 2019, the Judge gave his decision refusing to grant leave to the applicant 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 [27] – [34] for his refusal to grant leave :

“ Discussion

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’(Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). 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.’ (CACV 219/2018 [2018] HKCA 570, para 14(1))

29.   The Applicant complained she did not have legal representation after the Director’s decision on 27 October 2016.

30.   The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.  (CACV 284/2017 Re Paswan Shibu Lal, para 21)

31.   The Applicant complained she had to face the Adjudicator alone and there was no one to stand up for her should there be any unfairness. However, she failed to point out there was any unfairness or irregularities in the Board hearing. The Applicant could not show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

32.   The Applicant raised her language problem. In the current application, a friend helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, she was assisted by qualified interpreters while she was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.

33.   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

34.   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.”

The Appeal

8.In the Notice of Appeal filed on 14 January 2019, the applicant put forward the following grounds of appeal :

“ I am not satisfied with the decision because my life is not save (sic) in my own country. If I return to my country, I may be killed or tortured by my enemies. So, please help me so that I can save my life.”

9.In the written submissions, the applicant merely repeated her stance that she would face risk of harm if she were to return to her home country as the Indonesian police is corrupt and may persecute her upon her return.

10.We heard the appeal on 30 April 2019.  The applicant had nothing to add verbally.

DISCUSSION

11.As this court repeatedly pointed out, in the determination of an appeal, we focus on the decision of the Judge and we would only reverse the decision if the applicant can demonstrate that the Judge made errors of law or failed to take into account relevant matters already placed before the court or was otherwise plainly wrong, see Re Nupur Mst [2018] HKCA 524 at [14].  The grounds of appeal failed to identify any errors in the Judge’s decision and are not viable grounds of appeal.

12.Further, assessment of evidence on risk of harm and state protection 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.  We agree with the Judge that there was no error of law nor procedural unfairness of the Board’s decision and it had adhered to the high standard of fairness required of the applicant’s non-refoulement claim.

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 applicant, unrepresented, acting in person.