Re Robbiah

CACV 241/2019

[2019] HKCA 1029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 241 OF 2019

(ON APPEAL FROM HCAL NO 873 OF 2018)

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J U D G M E N T

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Hon Bharwaney J (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Woodcock given on 20 May 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 10 May 2018 upholding the decision of the Director of Immigration (“the Director”) dated 18 August 2017.  In the latter decision, the Director rejected the applicant’s claim for non-refoulement protection in Hong Kong.

Background

2.The applicant is a national of Indonesia. She last arrived in Hong Kong on 14 December 2009 and was permitted to work as a domestic helper.  Her employment contract was prematurely terminated and, according to her permission to remain, she was required to leave Hong Kong by 8 August 2010.  She did not do so, and overstayed illegally.  She was arrested by the police on 10 January 2011. She was convicted of the offence of breach of condition of stay and was sentenced to 3-month imprisonment suspended for 3 years.  A removal order was issued against her on 27 January 2011.  The applicant  lodged a non-refoulement protection claim on 14 February 2011 and she was released on her own recognizance on 1 March 2011. However, she failed to report back. She had absconded since 9 October 2012 and she was rearrested on 28 February 2017 for failing to answer Immigration Department Bail.  Following her arrest, she lodged a claim for non-refoulement protection by written signification on 2 and 3 March 2017.

3.The applicant’s claim was based on the fear that, if refouled, she would be harmed, or even be killed, by her creditor and the loan company because of a dispute over the loan.  The brief facts of this case were set out by the judge in [4] – [7] of the Form CALL-1 ([2019] HKCFI 779).

4.By a notice of decision dated 18 August 2017[1], the Director assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[2] and the BOR 3 risk[3]), the persecution risk[4], and the torture risk[5].

5.The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 26 March 2018. The Board dismissed the appeal/petition on 10 May 2018.  In its decision, the Board found that the applicant had never been physically attacked by her creditors, and she had not been verbally threatened since 2010.  The Board considered that the said verbal threats did not suggest any serious intent to occasion actual harm on the applicant. There was no evidence of state involvement in this case, and the level of ill-treatment suffered by the applicant did not attain the minimum level of severity.  The Board also found that state protection was available to the applicant and internal relocation was also a viable option for her.

The judge’s decision

6.The applicant filed her Form 86 on 21 May 2018, seeking leave to apply for judicial review against the Director’s and the Board’s decisions.  She set out the following grounds for seeking relief in her affirmation filed on the same day in support of the application:

(1) The Director and the Board failed to conduct sufficient inquiry into the relevant country of origin conditions;

(2) The Director and the Board should have held that the applicant suffered mental distress because she was responsible to repay the loan if refouled;

(3) They failed to assess the BOR 3 risk and/or gave insufficient reasons in support of their conclusion of the lack of the BOR 3 risk; and

(4) They failed to take into account the psychological strain and threats to the applicant resulting from the threats to her family members.

7.Upon the request of the applicant, an oral hearing was held on 1 March 2019.

8.As mentioned earlier, the judge refused to grant leave for the applicant to apply for judicial review. Her reasons in refusing leave were set out in [12] – [18] of the Form CALL-1 as follows:

“12. I have considered with rigorous examination and anxious scrutiny the papers, grounds of this application and the applicant’s oral submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

13. The grounds in the applicant supporting affirmation are not so clear or coherent but from what I can summarise, she submits both decision-makers failed to conduct sufficient enquiry into relevant COI information. They also failed to consider the applicant’s psychological and mental distress from her fear of the moneylenders. She says that both decision-makers also failed to give reasons for rejecting her BOR 3 claim.

14. The proper approach for an application for leave to apply for judicial review should be to seek a judicial review against the decision of the TCAB only. The applicant has only utilised the channel of appealing the Director’s decision to the TCAB. The adjudicator treated the appeal/petition as a de novo hearing or rehearing.

15. There are no particulars put forward in her grounds against the adjudicator. There are no grounds to show what COI information was irrelevant or what relevant COI information the adjudicator should have considered. Because of the lack of particulars, I find no merit in the submission that there was a failure to conduct sufficient enquiry into such information.

16. The adjudicator showed and set out what COI information he relied on and also set out why he found there to be no BOR 3 risk. He also gave reasons for rejecting all the applicable grounds. The question of mental distress or psychological strain was not raised before either decision-maker.

17. After considering the applicant’s affirmation and grounds, I do not find any that show there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

18. In my judgment, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

The appeal

9.On 30 May 2019, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

“… the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.” (sic)

10.The applicant lodged her written submission on 15 July 2019.  In it, she cited ST v Director of Immigration [2014] 4 HKLRD 277 and quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  She submitted that the Board acted in a procedurally unfair manner in dealing with her application.  She also made reference to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably. Lastly, the applicant referred to section 37ZT in respect of the late filing of the notice of appeal.

11.By a letter dated 30 May 2019, the applicant gave consent that this appeal might be dealt with by a 2-judge court.

12.We heard the appeal on 3 September 2019.

General principles

13.Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.

(1) 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 scrutinizing 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.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it was a fresh application for judicial review.

Discussion

14.In the present case, the Board rejected the applicant’s claim after finding that she would not face a real risk of harm if refouled.  State protection was found to be available to her, and internal relocation a viable option.  As explained above, assessments of risk, availability of state protection, and viability of internal relocation are within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on the public law grounds. After having reviewed the materials available before her, the judge found no reasonable prospect of success to challenge the findings of the Board in the intended judicial review.

15.Essentially, what was stated in the notice of appeal was an invitation to this Court to reassess the applicant’s claim afresh.  As we have explained, this is not a permissible course on appeal.

16.Nothing stated in the skeleton submissions constitutes viable grounds of appeal.  The applicant provided no particulars as to how the Board acted in a procedurally unfair manner.  There is no basis for us to accept that that was the case.  Nor can we see how the general legal propositions stated therein can avail the applicant in her appeal.

17.Section 37ZT is not relevant to this appeal.

18.In this appeal, the applicant failed to pinpoint any viable ground upon which this Court could reverse the decision of the judge.  Having reviewed the materials available to us, we cannot find any such ground either.  We agree with the judge that leave to apply for judicial review should be refused.

19.For these reasons, we dismiss the appeal.

The applicant appearing in person