Re Setyo Deno Wuryantari

CACV 438/2019

[2020] HKCA 371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 438 OF 2019

(ON APPEAL FROM HCAL 2555 OF 2018)

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Before:  Hon Yuen JA and Lisa Wong J in Court

Date of Hearing:  19 May 2020

Date of Judgment:  28 May 2020

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J U D G M E N T

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

The appeal

1.This is an appeal by the abovenamed applicant, Ms Setyo Deno Wuryantari, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 16 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 29 October 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 28 February 2018 (“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 42, is the fear of being harmed or even killed by her alcoholic and abusive husband. Briefly, such alleged fear is said to arise out of the following circumstances:

(1)  The applicant married Untung Suyatno (“Suyatno”), a part time construction worker, in 1996. She gave birth to twin boys in 1997. 

(2)  Suyatno became unemployed and alcoholic since the birth of the twins. The applicant’s family started to depend on her in-laws financially.

(3)  In around 2000, Suyatno’s drinking problem worsened.  They often quarreled over Suyatno’s drinking and the family’s finance. To ease the family finance, the appellant first worked in Hong Kong as a domestic helper from 2001 to 2003, leaving her 2 boys in the care of her in-laws. 

(4)  In 2003, the applicant went back to Indonesia after completing her contract as she missed her family. For the 2 years that followed, the applicant’s family lived on her savings from Hong Kong, which were exhausted in 2 years. Suyatno always asked the applicant for money for drinking and gambling.  They often quarreled over money matters He would slap and kick her around. Such domestic violence happened about twice a week. The applicant sustained mostly bruises on her face, which usually took her a couple of days to recover. She however did not seek any medical treatment because she felt shameful and was really afraid of her husband.

(5)  Beginning from late 2005, Suyatno forced the applicant to have sex with him by beating her up. Because Suyatno is her husband, the applicant felt that it would be difficult to report him to any authorities and that there was nothing she could do but to give in. She became pregnant and gave birth to her youngest son in 2006.

(6)  In around 2007 to 2014, the applicant returned to Hong Kong to work as a domestic helper again as she could not bear living with her husband.

(7)  In June 2014, the appellant went back to Indonesia for a 3-week holiday. When she arrived at her in-laws’ house at 4 am, Suyatno was drinking with a man and 2 women. One of the women claimed to be Suyatno’s girlfriend. The applicant asked Suyatno for a divorce but he refused. Because of the fight, the applicant went to stay at her sister’s home in Genteng. 

(8)  The following night, the applicant returned to her in-laws’ home and asked Suyatno for a divorce again. Suyatno refused because the applicant was the sole breadwinner of the family.  Suyatno was furious and threatened to kill the applicant if she filed for a divorce. He punched the applicant on her forehead and lips, causing bleeding open wounds (which took 2 weeks to recover). The applicant immediately ran away and returned to her sister’s place. She sought medical treatment from a private clinic in Genteng but did not report the assault to the police as she had to return to Hong Kong soon. She hid at her brother’s place in Surabaya for the rest of the holiday.  Suyatno kept calling her but the applicant dared not pick up the telephone.

(9)  The applicant returned to Hong Kong after the vacation in late June 2014. Suyatno kept sending text messages to her, threatening to kill her if she petitioned for a divorce. In response, the applicant changed her mobile number. She has not had any contact with Suyatno since.

(10)  From November 2014, the applicant worked in Hong Kong under a new contract, which came to a premature end on 10 February 2015. However, she did not leave Hong Kong within 14 days or at all.

(11)  In early 2016, the applicant’s sister told her that Suyatno had gone to her place to look for the applicant. He threatened to kill the applicant if she should ever return to Indonesia.

(12)  The appellant did not consider internal relocation within Indonesia a viable option as she had no money to start a new life in another place in Indonesia. She also believed that the police in Indonesia would not be able to, and would not, protect her, in what they would regard as a domestic matter, at least not without bribery which she could not afford.

Overstaying in Hong Kong and lodgment of NRF Claim

3.The applicant has overstayed in Hong Kong since 25 February 2015 and was arrested by the police for overstaying on 29 October 2015.  She later raised the NRF Claim by way of written representations dated from 9 December 2015 to 19 December 2015. She submitted her non-refoulement claim form dated 30 January 2018 on 1 February 2018. 

4.In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 15 February 2018 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, the low frequency and intensity of past ill-treatment, is indicative of a small future risk of harm from Suyatno upon the applicant’s return to Indonesia.  The behaviour of Suyatno showed that he had no real intention to seriously harm or kill the applicant despite the many opportunities to do so. 

(2)  Second, there is objective country of origin information (COI) showing that the Indonesian government has taken steps to provide assistance and protection for women in need.  The applicant’s assertion that the Indonesian authorities would not and could not offer protection to her was speculation unsupported by any facts. The availability of state protection would lower or even negate the risk (if any).

(3)  Third, internal relocation alternatives (e.g. to Bali or Jakarta) are available to further negate or lower the perceived risks. There is no evidence that Suyatno is powerful or influential or has the ability or resources to locate the applicant all over Indonesia. And it is not unduly harsh or unreasonable for an able-bodied adult of the applicant’s age and with overseas working experience to relocate within Indonesia to avoid her husband.

Appeal to Board and Board’s Decision

6.The applicant appealed to the Board against the Director’s Decision on 13 March 2018.

7.The Board conducted a rehearing on 11 September 2018, 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.  The Board did NOT accept:

(1)  that the applicant was mistreated or threatened by her husband from 2003 to 2007;

(2)  that she was assaulted or threatened by her husband when she returned to Indonesia in June 2014;

(3)  that she subsequently hid at her brother’s home in June 2014 to avoid harm from her husband;

(4)  that she received threatening phone calls or text messages from her husband after she returned to Hong Kong;

(5)  that in 2016, her sister told her that her husband was looking for her in Indonesia and was threatening to kill her if she returned to Indonesia;

(6)  that she feared harm from her husband if she returned to Indonesia; or

(7)  that she could not return to Indonesia because she was afraid of her husband.

Application for leave for judicial review and Judge’s Decision

9.By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 255/2018 on 14 November 2018, the applicant sought leave to apply for judicial review of the Board’s Decision.

10.By paragraphs 13 to 15 of an affirmation filed on the same date, the applicant advanced the following grounds for judicial review:

(1)  “[p]rocedural [i]mpropriety ) [f]ailure to conduct sufficient inquiry into the relevant country of origin conditions”;

(2)  “[p]rocedural [i]mpropriety / [i]rrationality ) [f]ailure to reasons for assessment of lack of BOR3 risk and/or sufficient basis to support conclusion of lack of BOR3 risk”;

(3)  “[e]rror/[m]isdirection in law ) [f]ailing to take into account the considerations of psychological strain and threats to [the applicant] personally”. 

On these grounds, the applicant contended in paragraph 16 that there was no sufficient basis to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon refoulement to Indonesia.

11.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 [14] to [22] of the Form CALL-1 dated 16 September 2019 ([2019] HKCFI 2231):

“The Board’s Decision

14.  The applicant appeared before me.  She confirmed that she had no complaint against either the Immigration officer or the Adjudicator.  She considered that she had had a fair hearing before the Board.  Her lawyer had explained the Director’s Decision to her. Her friend had explained the Hearing Bundle to her.

15.  I put the Board’s findings to her for her comments. She said that she was crying when she answered the Adjudicator’s questions and she was not clear about those questions. She said that she had told the Adjudicator about her problems. The Adjudicator had asked her if she needed a break or rest. She said no and asked the Adjudicator to continue with his questions.

16.  I find that the Adjudicator had discharged his duties properly in the hearing.

17.  It is obvious that as the Board rejected her evidence in support of her claim, she has no factual basis for her claim.

18.  All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court.

19.  Ground (1) is her opinion without any evidence in support of it.

20.  Ground (2) and Ground (3) are irrelevant because the Board simply disbelieved her evidence.

21.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

22.     Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review.  Accordingly, I dismiss her application.”

Appeal to Court of Appeal and grounds of appeal

12.The notice of appeal filed herein on 20 September 2019 alluded to the following ground of appeal (sic):

“I would like to inform court my life is dangerous I am requested to court could you please save my life bundle of thanks”

13.In her skeleton submissions dated 17 January 2020, the applicant submitted that the Judge had failed to discharge his duty of care towards a litigant in person who does not understand English. She complained about the lack of legal and language assistance, without which she could not possibly identify what information she could provide or what argument she could raise before the Board. She claimed to have been put on the spot at the hearing before the Judge; she was not aware of the nature of the hearing and was unable to prepare or it. She sought a reconsideration of her case.

14.The applicant appeared in person at the hearing of the appeal on 19 May 2020. She was provided with an Indonesian interpreter. Apart from pleading to be allowed to stay in Hong Kong, she had nothing to add to her notice of appeal or written submission.

Discussion

15.It can be seen from [8] above that the applicant’s appeal against the Director’s Decision failed entirely on the facts in that the Board did not accept the majority of the allegations upon which the NRF Claim was premised. The applicant is bound by such adverse findings of fact.  Neither the Judge nor this court have jurisdiction to reconsider the applicant’s factual case, at least not without cause. 

16.This is so because 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 of First Instance 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.

17.As for the Court of Appeal, 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 either. 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 and the proposed grounds for judicial review 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]). Nor will the Court of Appeal generally admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[5]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 [2018] HKCA 524 at [14(1)] and [14(2)].

18.Given that 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 complaint made by the applicant in her skeleton submissions about 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.

19.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. 

20.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.

21.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.

22.In the premises, the applicant did not in the notice of appeal or skeleton submissions 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

23.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