Sunarti v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

CACV 478/2019

[2020] HKCA 337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 478 OF 2019

(ON APPEAL FROM HCAL NO 1065 OF 2018)

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Before: Hon Au JA and S T Poon J in Court

Date of Hearing: 11 May 2020

Date of Judgment: 21 May 2020

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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 appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in the Form CALL‑1 dated 27 September 2019 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 2177. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 11 May 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 21 December 2016 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.By a letter dated 9 October 2019, the applicant gave consent to the appeal being heard by a two-member court. 

A.   Background

3.The applicant is a national of Indonesia.  She entered Hong Kong on 27 January 2008 as a foreign domestic helper.  She did not depart when her employment contract was terminated prematurely.  She overstayed and was arrested by the police on 5 December 2010.  When she was referred to the immigration department, she lodged a torture claim on 3 January 2011. Her torture claim was eventually rejected on 4 November 2013. Meanwhile, she had lodged a non-refoulement claim on 4 March 2013. 

4.The details of the applicant’s claim and her personal background were set out in paragraph 9 of the Director’s Decision, and paragraphs 27-36 of the Board’s Decision.

5.Briefly stated, the applicant claimed that if she returned to Indonesia, she would be harmed or killed by her abusive husband, Suharso, and/or by loan shark, Wanto, who demanded repayment of the loans made by her husband.  The applicant claimed that her husband was abusive and sometimes kicked her and slapped her whenever he was angry.  He was indulged in gambling and drinking and thus often borrowed monies from his friends and loan shark.  The applicant had been in Hong Kong since 2006 to earn money to support her family.  In 2007, her husband called and demanded more money to repay his loan.  He threatened that he would do something bad to her if she refused.  Out of fear, she changed her phone number and cut off her contact with her husband.  Later, she was told by her mother that Wanto came to her house and threatened to kill her if she refused to pay her husband’s debts.  Thus, she feared that the loan shark would hunt her down to harm or kill her if she returned. 

B.   The Director’s Decision and the Board’s Decision

6.The Director assessed the BOR3 risk^[1], the persecution risk^[2], and the BOR2 risk^[3] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

7.The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 12 March 2018, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed her appeal.

8.The Board found that the applicant did not sustain serious injuries which amounted to persecution for convention reason.  Further, there was no evidence to support that the applicant had suffered any harm from Wanto, especially the applicant conceded that she had never met Wanto (paragraph 42 of the Board’s Decision).  In any event, the Board found that internal relocation was available to the applicant (paragraphs 43-48 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.  

C.   The Deputy Judge’s Decision

9.The applicant filed a Form 86 on 11 June 2018 seeking leave to apply for judicial review against the Board’s Decision.  The grounds of review were summarized by the Deputy Judge at paragraph 11 of the Deputy Judge’s Decision as follows:

“11. On 11 June 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3) procedural unfairness in that the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant by giving her the hearing bundle only six days before her appeal hearing with the majority of the documents in English thereby giving her insufficient time to prepare for the hearing especially due to her limited skill in English and being unrepresented; and

(5) procedural unfairness in that the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which led to groundless speculation that it would be safe for her to return to her home country.”

10.The hearing before the Deputy Judge was fixed to be heard on 13 August 2019 but the applicant did not turn up.  Having considered all the documents available before him, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 12-17 of the Deputy Judge’s Decision:

“12. These are however mainly just broad and vague assertions of the applicant containing several 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 how did the Board unlawfully fetter its discretion or act in an unfair manner in dealing with her appeal, or in what way was the Board’s decision unfair or unreasonable in the public law sense or that the COI were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and as such I do not find any of them reasonably arguable for her intended application.

13. The only complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

14. Even if it is true that the hearing bundle indeed came to her late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her SCF, record of her screening interview and the Director’s decision should be well familiar to the applicant as they had earlier all been made available to her when she was still legally represented by DLS, whilst her SCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue with the hearing bundle or requested the adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in her appeal before the Board.

15. 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16. In the premises and having considered 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.

17. 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.”

D.   Grounds for appeal

11.The applicant filed the Notice of Appeal dated 9 October 2019 to appeal the Deputy Judge’s Decision.  The grounds of appeal are:

“ON 21 SEPTEMBER 2019 THE HONOURABLE JUDGE OF THE HIGH COURT MR BRUNO CHAN REFUSED MY JUDICIAL REVIEW FOR LEAVE TO APPLY. IN THE JUDGEMENT CALL 1 HE FAILED TO SHOW MY REAL CAUSE TO REFUSE MY J.R. BUT I HAD MANY CAUSE/COMPLAIN AGAINST THE AJUDICATOR OF TORTURE CLAIMS APPEAL BOARD AND THE DIRECTOR OF IMMGIRATION. THE HONOURABLE JUDGE DID NOT CONSIDER THAT CAUSE OR DID NOT MAKE ANY COMMENTS EXLORE EVERY THING, SO I WISH TO APEAL THE COURT OF APPEAL FOR JSUTICE” [sic]

12.Other than this vague allegation that the Deputy Judge did not address every argument raised by her, she did not pinpoint the errors made in the Deputy Judge’s Decision with sufficient particularities.  

13.Pursuant to Master Au-Yeung’s directions dated 10 October 2019, the applicant filed her skeleton submissions on 5 December 2019. In that, she repeated her personal background and her claim.  She also claimed that her interpreter and lawyers did not help her.  Such claim was not raised before the Board nor the Deputy Judge. 

14.At this hearing, the applicant confirmed that she had nothing further to add to what had already been set out in the Notice of Appeal and the written submission in support of this appeal.

E.   Discussion

15.The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

16.First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.Third, 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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

19.In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.Bearing these principles in mind, we now turn to consider the grounds of appeal.

21.None of the grounds in the applicant’s Notice of Appeal or skeleton submissions identified any errors in the Deputy Judge’s Decision.  The applicant merely alleged that the Deputy Judge failed to address causes/complaints raised by her.  However, she had singularly failed to identify specifically which complaint or argument was not addressed by the Deputy Judge in his decision.  To the contrary, the grounds for review put forward by the applicant were sufficiently explained in details in the Deputy Judge’s Decision: see [12]-[17] of the Deputy Judge’s Decision.  This ground is therefore totally devoid of merit. 

22.As to the complaints against her interpreter and lawyer, they were not even raised or argued before the Board or the Deputy Judge.  Further, in the proceedings before the Board, when the interpreter assisted the applicant, the applicant did not suggest to the Board that she did not understand the interpreter (paragraph 17 of the Board’s Decision).  This is not a viable ground of appeal challenging the Deputy Judge’s Decision.

23.In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.   Disposition

24.For all the reasons given above, the applicant’s appeal has no merits at all. Accordingly, we dismiss the appeal.

The applicant acting in person