Elisa Adya Alias Adya Elisa Alias Elisa Adya v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office and Another

CACV 401/2019

[2019] HKCA 1393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 401 OF 2019

(ON APPEAL FROM HCAL NO 287 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam on 21 August 2019^[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.The applicant is a 41-year-old national of Indonesia.  She came to Hong Kong to work as a domestic helper on 7 May 2000.  Her employment contract was prematurely terminated in October 2010.  She then made side trips to China and last entered Hong Kong on 8 October 2012 to work as domestic helper again but did not report duty to the new employer.  She began overstaying in Hong Kong from 23 October 2012 and was arrested by the police on 20 May 2013.  She was imprisoned and released on 11 July 2013.  She lodged a non-refoulement claim on 18 March 2014 on the basis that she would be harmed or killed by the boyfriend of her foster mother (“her uncle”) and her estranged husband if she were to be returned to Indonesia.  

The Director’s decision

3.By a Notice of Decision dated 22 February 2017, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4]and persecution risk^[5]. 

4.The Director considered that there are no substantial grounds for believing that the applicant would be in danger of being harmed or killed by her uncle and her husband upon her return to Indonesia.  The alleged ill-treatment, even if true, has not demonstrated that the applicant has any problem because of her race, religion, nationality or membership of a particular social group or political opinion.  There is also no substantial ground to believe that the feared treatment from her uncle and/or her husband was inflicted by, or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.  Besides, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected. 

The Board’s decision

5.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 15 January 2018.  According to the applicant, she had not seen or heard from her uncle and her husband since 1991 and 2008 respectively.  The Board found that her allegations with regard to the past events and experiences before she left Indonesia are unsupported by any admissible evidence.  At no time did the applicant suffer any injuries that were of the degree of severity or intensity required to establish a claim for non-refoulement protection.  The Board also considered that state protection and internal relocation alternatives are available.  Therefore, the appeal was rejected on 30 January 2018. 

The intended judicial review

6.The applicant filed a Form 86 and an affirmation on 23 February 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

The judge’s decision

7.On 23 August 2019, the judge dismissed the application for leave to apply for judicial review as the applicant’s complaints are not reasonably arguable and she has no realistic prospect of success in the intended judicial review.

Grounds of appeal

8.The applicant filed a Notice of Appeal on 2 September 2019 against the judge’s decision.  In the Notice of Appeal, she stated her grounds of appeal as follows:

(1)  Failure to consider her fear that she would face risk of harm upon refoulement;

(2)  Failure to consider her fear under BOR 3 and BOR 2 risk;

(3)  Failure to consider country of origin condition.

9.In her written submissions, the applicant submitted that:

(1)  The Director and the Board failed to comply with their duty to make sufficient inquiries into the country of origin conditions of her claim and adopted a passive approach in contravention of the high standards of fairness;

(2)  The Director and the Board failed to take into account and/or give proper weight to relevant considerations and materials and hence the decisions are illegal.  Both of them failed to give due regard to:  

(a)  The fact that she would face real risk upon refoulement to her country of origin because of fear from her enemies, her life would be in danger;

(b)  The fact that she must have been placed in severe mental distress as a result she would definitely face difficulty from her enemies upon refoulement to her country of origin.

(3)  Her claims are not personal or private dispute, she fled to save her life.  The group of murderers will hunt her wherever she hides in Indonesia.  In the judgment, there are no clear directions why she would not be a subject of persecution upon refoulement, the Board and the Director failed to assess her fear, her enemies continued to look for her and she still fears to return to her country.  

10.Among the above grounds, only the grounds in relation to the failure to consider her fear and the BOR 3 risk were raised in the original leave application.

Legal Principles

11.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

12.In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

13.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 is a fresh application for judicial review.

Analysis and disposition

14.An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below^[6].  Thus, this court will not entertain the applicant’s new grounds which were not raised in the original leave application at the Court of First Instance. 

15.According to Re Moshsin Ali^[7], the applicant cannot seek judicial review against the Director’s decision once an appeal to the Board is pursued by a claimant as the decision of the Board will supersede the decision of the immigration officer.  The judge was correct in dismissing the applicant’s application regarding the decision of the Director. 

16.As for the grounds regarding the Board’s decision, the applicant failed to point out any errors of the judge in assessing the Board’s decision.  The judge’s decision was well founded for reasons stated in paragraphs 33 to 38 in his decision.

17.For the above reasons, there is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  Thus, the appeal should be dismissed.

Applicant (Appellant), appearing in person

[1] [2019] HKCFI 2056

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of being arbitrarily deprived of his life under article 2 of the Hong Kong Bill of Rights.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[5] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[6] Re Qadir Sher [2018] HKCA 160 at §11

[7] [2018] HKCA 549, CACV54/2018, unreported, 24 August 2018, at §45