Re Endriyani

CACV 422/2019

[2020] HKCA 375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 422 OF 2019

(ON APPEAL FROM HCAL 874 OF 2018)

-----------------------------------

-----------------------------------

Before:  Hon Yuen JA and Lisa Wong J in Court

Date of Hearing:  19 May 2020

Date of Judgment:  28 May 2020

___________________

J U D G M E N T

___________________

Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal by the abovenamed applicant, Ms Endriyani, against the order made by Deputy High Court Judge Josiah Lam (“Judge”) on 4 September 2019 refusing her leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 9 May 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 20 January 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of Indonesia now aged about 39, is a fear of being harmed or even killed by one Rudi Susilio (“Rudi”), a loan shark based in Banyuwangi from whom the applicant had borrowed, but not repaid, 250 million IDR (“Loan”).  Briefly, such alleged fear is said to arise out of the following circumstances:

(1)  The applicant started to work as a domestic helper in Hong Kong on 10 May 2005.

(2)  In around October 2009, while she was working in Hong Kong, the applicant borrowed the Loan from Rudi to pay her father’s medical expenses of about 60 million IDR and to repair the leaking rooftop of her family house which would cost about 120 million IDR. The Loan was secured by (1) a pledge of the family house and the land on which it stood and (2) her father’s personal guarantee. The applicant agreed with Rudi that she would repay the Loan by paying him 300 million IDR in 5 years. The applicant drafted and signed a letter recording the terms of the loan agreement, which she then sent to Indonesia for her father to co-sign as guarantor. Rudi later collected the letter from her family.

(3)  Beginning from October 2009, the applicant made monthly repayments from her salary through her family until September 2010.

(4)  Unfortunately, the applicant’s employment contract was prematurely terminated on 23 October 2010.  She was unable to secure a new contract. Without any income, she was unable to continue to repay the Loan and became afraid to return to Indonesia. 

(5)  In around late 2010, Rudi sent text messages to the applicant demanding for repayment immediately. 

(6)  One day in around late 2011, Rudi went to the applicant’s family house with 3 unknown men. They threatened her father that he would foreclose on their family land and house if he did not repay the Loan. On this occasion, Rudi took away a television and a refrigerator.

(7)  The appellant’s father passed away in mid 2012.

(8)  The applicant telephoned Rudi to appeal for more time.  Rudi insisted that the loan must be repaid within a month.  Otherwise, he would foreclose on the applicant’s family home and land. 

(9)  Since the applicant was unable to repay the Loan to Rudi, one day in around 2013, Rudi went to her family house again with 7 unknown men armed with guns and long swords. They drove her family out of the house. 

(10)  The applicant’s younger brother informed her that Rudi had since seized their family house and land. The applicant’s last contact with her brother was in 2013. Although she knows that her mother, siblings, husband and son are living in Indonesia, she has lost contact with them and does not know where they have all gone.

(11)  Sometime later, the applicant received threatening text messages from Rudi daily, demanding for repayment since the value of the family land and house was insufficient to discharge the Loan.

(12)  One day in around 2015, the applicant received the last text message from Rudi threatening to kill her if she ever returned to Indonesia as he had many subordinates there to locate her.  The applicant has not heard from Rudi after such message.

(13)  The applicant did not report Rudi’s threats to the Indonesian police because he had evidence that she owed him the Loan.  She thought that the police could not protect her in a private loan dispute. 

(14)  In addition, she fears that she would be unable to avoid Rudi even by relocating to other places in Indonesia as Rudi had a wide network of subordinates to assist him to trace her whereabouts.

Overstaying in Hong Kong and lodgment of NRF Claim

3.As stated above, the applicant’s last employment contract in Hong Kong was prematurely terminated on 23 October 2010. Instead of leaving Hong Kong on or before 6 November 2010, the applicant chose to overstay since 7 November 2010. She was arrested by the police for overstaying on 3 July 2016. She later raised the NRF Claim by way of written representation on 19 August 2016. Subsequently, she submitted her non-refoulement claim form on 12 December 2016.

4.In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 16 January 2017 with the applicant who then had legal assistance and representation from the Duty Lawyer Service.

Director’s Decision

5.The Director’s Decision covered torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4]. The Director found the NRF Claim unsubstantiated.

(1)  First, Rudi never inflicted any physical harm against the applicant or her family in Indonesia. He stopped texting the applicant after 2015. The absence of past ill-treatment and further action by Rudi after 2015 indicates that the perceived risk of harm is unlikely to materialise. Rudi’s behaviour over the years did not show any real intention to kill or harm the applicant, not to mention that it would not help in the recovery of the Loan by killing the applicant. The applicant’s failure to seek protection in Hong Kong as soon as she received Rudi’s threat showed that she did not perceive the harm from Rudi to be as imminent or substantial as she alleged.

(2)  Second, there is objective country of origin information (COI) showing that reforms have been and are ongoing in Indonesia.  The Indonesian government has taken practical steps to monitor the conduct of the Indonesian police and government officials. There are also avenues to seek justice in Indonesia.  There was no official involvement or acquiescence in the applicant’s dispute with Rudi. Reasonable state protection would be available and accessible to the applicant to lower or even negate the risk (if any).

(3)    Third, internal relocation alternatives (e.g. to Malang where the applicant stayed for 3 months to receive training before coming to work in Hong Kong in 2005 or Jakarta, the capital of Indonesia) are available to further negate or lower any perceived risk. The claim that Rudi had subordinates all over Indonesia is based only on hearsay or even the applicant’s speculation, unsupported by any evidence. There is no evidence to suggest that any harm from Rudi would not be confined to Banyuwangi. Nor is there ground for thinking that Rudi would or could mobilise huge resources to locate the applicant throughout the country merely because of the Loan borrowed from him 6 to 7 years ago. And it is not harsh or unreasonable for an able-bodied adult with overseas working experience like the applicant to relocate within Indonesia.

Appeal to Board and Board’s Decision

6.The applicant appealed to the Board against the Director’s Decision on 2 February 2017.

7.The Board conducted a rehearing on 12 December 2017, at which the applicant testified before, and answered questions by, the Board through an Indonesian interpreter.

8.The Board’s Decision covered all 4 applicable grounds for non-refoulement protection. 

9.The Board reviewed the applicant’s evidence in detail.  In dismissing the appeal, the Board found the applicant’s evidence about the outstanding loan amount she still owed Rudi unconvincing[5] and therefore the alleged daily threatening text messages after 2013 and the final death threat in 2015 from Rudi implausible. Also, the Board found the applicant’s alleged reason for not reporting her case to the police unbelievable so the Board did not attach any credence to the alleged final death threat by Rudi.  The Board was also not persuaded that Rudi threatened to kill the applicant.  Her past experiences did not amount to persecution for a Convention reason.  Nor has she proved that she faces any risk of being deprived of her right to life under BOR2 or of being subjected to CIDTP by Rudi under BOR3 or to torture by Rudi if refouled to Indonesia.

10.Further, the Board was persuaded:

(1)  On the available COI, while the police in Indonesia are not entirely reliable, their practices are improving. There is a net positive benefit from the availability of state protection in Indonesia. Such protection would reduce the level of risk of ill-treatment feared by the applicant upon being refouled.

(2)  It would not be unduly harsh for the applicant to relocate within Indonesia. In a country as physically expansive as Indonesia with a population as large, it would take significant resources for Rudi to locate the applicant if she should move away from Banyuwangi. The Board was not convinced that Rudi was a major moneylender with a broad network of contacts throughout Indonesia to enable him to track the whereabouts of the applicant.

Application for leave for judicial review and Judge’s Decision

11.By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 874/2018 on 21 May 2018, the applicant sought leave to apply for judicial review of the Director’s Decision[6] and the Board’s Decision without stating her proposed grounds for judicial review. By the supporting affirmation filed on the same date, the applicant put forward the following grounds as summarised by the Judge at [28] to [30] of the Form CALL-1 dated 4 September 2019 ([2019] HKCFI 2169) (“Form CALL-1”) as follows:

“28. The Applicant complained the Adjudicator failed to take into account of her psychological strain and the repeated threats Rudi made to her and her family.

29. The Applicant said the Adjudicator wrongly considered the manner of her departure from Indonesia and the fact that she had not been physically harmed by Rudi.

30. The Applicant said the Adjudicator was wrong to conclude there was no risk facing her and that state protection was available to her.”

12.After an oral hearing at which the applicant was present and was assisted by an Indonesian interpreter, the Judge refused leave.  His reasons can be found in [34] to [42] of the Form CALL-1 (omitting footnotes):

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

35.  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.”

36.  The Applicant said the Adjudicator wrongly considered the manner of her departure from Indonesia and the fact that she had not been physically harmed by Rudi.

37.  The Adjudicator did not make any comment on those two matters.

38.  The Applicant complained the Adjudicator failed to take into account of her psychological strain and the repeated threats Rudi made to her and her family.  She said the Adjudicator was wrong to conclude there was no risk facing her and that state protection was available to her.

39.  The Adjudicator was not convinced the Applicant received death threats from Rudi.  He found the Applicant faced no real risk of any kind.  The Adjudicator had analysed the Applicant's case before he came to such conclusion, which was not Wednesbury unreasonable.

40.  Concerning state protection, the Adjudicator had made a balanced study of country-of-origin information ("COI") before he found reasonable state protection as well as internal relocation were available to the Applicant in any event.

41.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.  The Adjudicator had proper basis for his finding 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.  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.

Conclusion

42.  The Applicant's complaints are not reasonably arguable.  She has no realistic prospect of success in the sought judicial review.  I therefore refuse to grant her leave to apply for judicial review.”

Appeal to Court of Appeal and grounds of appeal

14.The notice of appeal filed herein on 13 September 2019 contained 13 (somewhat repetitive) paragraphs from which the following grounds of appeal can be distilled:

(1) There was procedural unfairness as the court and the authorities did not exercise caution or diligence in dealing with the applicant as a litigant in person (“Ground 1”).

(2) Notwithstanding her inability to read or write English, after the Director’s Decision, the applicant had not been provided with any language or legal assistance, without which she could not understand the decisions that had been made against her, formulate grounds for judicial review or grounds of appeal or effectively appear at hearings as a litigant in person much to her disadvantage. Such lack of assistance rendered the assessment of the NRF Claim unfair (“Ground 2”).

(3) Neither the Board nor the Judge had acknowledged or given any allowance to the applicant for such handicap (“Ground 3”).

(4) Contrary to the findings that questioned the applicant’s allegations that she had received death threats from Rudi and that she faced risk of harm from Rudi, the applicant still remained at risk of being hurt by Rudi. The Judge did not take the applicant’s continuing fear of Rudi into account (“Ground 4”).

(5) The Judge was biased and erred in his judgment. He failed to elaborate on the reasons for refusing leave for judicial review. He had intentionally shortened his judgment to make it more difficult for the applicant to appeal (“Ground 5”).

(6) The appellant requested for translation and language assistance at the appeal hearing before the Court of Appeal (“Ground 6”).

15.In her skeleton submission dated 21 January 2020, the applicant sought a reconsideration of her case on the bases of unfairness and unreasonableness. It was not true that she could understand the Board’s Decision. An explanation of the Board’s Decision by her friend was insufficient to give her an understanding of the “legal jargons”. Nor did she confirm that she had a fair hearing before the Board. What she intended to confirm was that she understood that her appeal to the Board had been dismissed. It was not fair that the Board’s Decision had never been read back to her in her first language. The Judge had therefore failed to exercise “diligent duty of care” towards the applicant as a “non-represented litigant who does not understand full English”. On this ground alone, her case should be remitted back to the lower court. She reiterated her request for language and legal assistance, without which she could not lodge a proper appeal. Upon the provision of such assistance, she should be given time to formulate further grounds of appeal and make further submissions.

16.The applicant appeared in person at the hearing of the appeal on 19 May 2020.  She was provided with translation service through an Indonesian interpreter. Other than pleading for a little bit more time in Hong Kong, she had nothing substantial to add to her notice of appeal or skeleton submissions.

Court of First Instance’s role in judicial review in non-refoulement claim

17.The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

18.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant as well as the proposed grounds for judicial review he had placed before the court below as an appeal is not the occasion for fresh grounds to be advanced (see Re Zunariyah [2018] HKCA 14, [16]).  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[7]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

Ground 1

19.Other than the allegations raised in the other grounds of appeal, Ground 1 is too vague to merit any or any serious consideration.  The applicant has not condescended to any particulars as to how she or her case has not been treated with caution or diligence. 

Grounds 2, 3 and 6

20.Turning then to Grounds 2, 3 and 6 (legal representation and interpretation services), as stated in [18] above, the Court of Appeal shall interfere in a refusal of leave for judicial review only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. The lack of legal and language assistance and the alleged difficulties caused thereby to the applicant in pursuing the appeal to the Board was not raised as a proposed ground for judicial review before the Judge. We fail to see how the Judge can be said to have erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in not having regard to a ground not before him. An appeal is not the occasion for fresh grounds to be advanced (see Re Zunariyah [2018] HKCA 14, [16]).

21.Anyway, it does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178. 

22.In this case, the applicant did already have the benefit of legal representation from the Duty Lawyer Service in presenting her case to the Director. Other than a general complaint, she has not pointed out in what ways she was prejudiced before the Board or the Judge due to her being unrepresented. And we can see none, particularly given the purely factual nature of the NRF Claim.

23.As for interpretation services, they are provided at the hearings before the Board, the Judge and this court.  The Applicant did not highlight any particular aspect of such proceedings where the lack of interpretation service before/during these hearings hampered the presentation of her case.

Ground 4

24.As stated in [17] and [18] above, the Director and the Board are tasked with finding facts such as risk of the harm allegedly feared by the non-refoulement protection claimant. Neither the Court of First Instance nor the Court of Appeal should re-assess the non-refoulement claim including the alleged fear of harm giving rise to it. The assertion of continuing risk of harm from Rudi by the applicant under Ground 4 directly contradicts the findings in this connection by both the Director and the Board who gave detailed reasons for such findings. See paragraphs 11 to 14 of the Director’s Decision and paragraphs 43 to 55 and 71 to 81 of the Board’s Decision. Other than her bare contrary assertion, the applicant has not pinpointed any particular defects in either analysis.  And we cannot find any. Ground 4 has no merits.

Ground 5

25.As in the case of Ground 1, Ground 5 is vague without any particulars as to the ways in which the Judge was allegedly biased or allegedly erred. While the Judge’s discussion was brief, it is sufficient to deal with the proposed grounds for judicial review raised by the applicant.  Ground 5 is unarguable.

26.In the premises, the applicant did not in the notice of appeal or written submission before us identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nor can we discern any.

Disposition

27.For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.   

The applicant, unrepresented, appeared in person