Re Susilowati

CACV445/2019

[2020] HKCA 378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 445 OF 2019

(ON APPEAL FROM HCAL 1630 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 Susilowati, 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 decisions of the Torture Claims Appeal Board (“Board”) given on 5 May 2017[1] and 9 August 2018 (“1^st Board’s Decision” and “2^nd Board’s Decision” respectively and “Board’s Decisions” collectively), 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 11 June 2015 and a notice of further decision dated 29 November 2017[2] (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively and “Director’s Decisions” collectively).

Bases 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 36, is a fear of being harmed or even killed by (1) a loan shark from whom her parents had borrowed money which they failed to repay and (2) her parents who wanted to force the applicant to marry the loan shark in settlement of their debt.

3.Briefly, such alleged fear is said to arise out of the following circumstances:

(1)  The applicant worked as a domestic helper in Hong Kong from March 2007.

(2)  Her parents opened a grocery shop near their home in Trenggalek, East Java in around 2010.

(3)  After she completed her second contract as a domestic helper in Hong Kong in August 2011, the applicant returned to Indonesia for holiday. It was during this vacation that the applicant was told by her parents that they had borrowed a huge sum of money from a loan shark for the opening of the grocery shop. The applicant however does not know exactly how much her parents had borrowed. She only knew that it was a sizable amount. 

(4)  Business was bad and her parents suffered losses and could not repay the loan or the interest thereon. 

(5)  Her parents further told the applicant that they had entered into an agreement with the loan shark that one of their unmarried daughters would marry him as repayment. The applicant’s parents tried to persuade the applicant to marry the loan shark since she was the only single child of the family. They even threatened to disown the applicant if she declined.  Notwithstanding that, the applicant refused to marry the loan shark as he already had a wife and children. The applicant eventually sneaked away from home with the help of a friend.

(6)  The applicant did not know much about the loan shark, not even his name. She had however learnt from a friend that he lived in a city in East Java far away from her hometown and that despite being married, he was a womaniser and liked to torture the woman while having sex. 

(7)  As she could not bear the pressure from her parents, the applicant shortened her holiday and left Indonesia for Hong Kong on 8 September 2011. She did not encounter any problem from Indonesian immigration during her departure.

(8)  The applicant’s last contact with her parents was in around October 2011. They kept on telling the applicant to return home to marry the loan shark. Since then, the applicant was too afraid to contact her parents. The applicant also ceased to have anything to do with her siblings as they sided with their parents.

(9)  The applicant did not report her case to the police or other authorities in Indonesia as she thought she would be bound by her parents’ agreement with the loan shark. She thought it would be impossible for the police to protect her because it was a private loan dispute. She was unable to relocate to other places in Indonesia either because her parents would ask all their relatives and her friends to locate her. Indeed, since her last arrival in Hong Kong, her parents had kept on questioning one of her friends in Hong Kong for her whereabouts.

Overstaying in Hong Kong and lodgment of NRF Claim

4.On 15 August 2012, the applicant’s contract was prematurely determined. Instead of leaving Hong Kong within 2 weeks on or before 29 August 2012, the applicant overstayed since 30 August 2012.  She was arrested by the police on 6 May 2013 for overstaying. On 13 May 2013, the applicant was convicted of breach of her condition of stay by overstaying and sentenced to 2 months’ imprisonment suspended for 3 years. She raised the NRF Claim by way of written representation dated 4 October 2013, which was supplemented by letters dated 3 and 22 March 2014. She submitted her non-refoulement claim form in May 2015.

5.In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 8 June 2015 with the applicant who then had legal assistance and representation from the Duty Lawyer Service.

Director’s Decisions

6.The 1^st Director’s Decision covered torture risk[3], persecution risk[4] and “BOR 3” risk[5]. The Director found no substantial grounds to believe that either the applicant’s parents or the loan shark would harm the applicant on her return to Indonesia.

(1)  First, the applicant was subjected only to verbal persuasion and threats of being disowned from her parents. Nor was it then suggested that the loan shark had inflicted any harm on the applicant or her family. In the absence of past ill-treatment, it was not accepted that the applicant would be at risk of being harmed by her parents or the loan shark, if refouled.

(2)  Second, the applicant had not sought assistance from the police or other authorities in Indonesia. There is objective country of origin information (COI) showing that reforms have been and are ongoing in Indonesia with objective indications that the Indonesian government and certain non-governmental organisations have taken practical steps to protect the rights of citizens. Official channels are also available in Indonesia to facilitate complaints against the malpractice and corruption of police officers and government officials. The availability of state protection would further lower or even negate the risk (if any).

(3)  Third, internal relocation alternatives (e.g. to Jakarta, the capital and largest city of Indonesia). There is no fact to indicate that the applicants’ parents or the loan shark would have influence or resource spreading over the whole country for the purpose of locating the applicant. And it is not unduly harsh or unreasonable for an able-bodied adult with overseas working experience like the applicant to relocate within Indonesia. The availability of internal relocation options would further lower or negate the perceived risks, if any.

7.Following the 1^st Director’s Decision, by a letter dated 17 May 2017, the applicant was invited to submit additional relevant facts on or before 31 May 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable ground. According to paragraph 6 of the 2^nd Director’s Decision, the applicant responded to such invitation by letter dated 31 May 2017, which included the following additional allegations (“Additional Allegations”):

(1)  The loan shark and his gang had twice attacked the applicant’s family. Her sister was shot in the thigh and other family members were also injured.

(2)  The applicant’s father had complained about the attacks to the police and other Indonesian authorities to no avail.

(3)  The loan shark had burnt down the applicant’s family home in revenge upon learning of the applicant’s father’s complaints against him.

(4)  The loan shark had framed some false cases against the applicant’s family.

(5)  The loan shark and his people had been “threading” the applicant and her family by telephone and they were still looking for the applicant.

(6)  The applicant’s parents had fled abroad to save their lives.

(7)  The applicant feared that she would be killed by the loan shark and her parents for refusing to marry the loan shark and also arrested by the police for some false cases against her.

(8)  The loan shark had affiliation/influence with the Indonesian police and ruling party of which the then prime minister was a member.

(9)  The applicant’s father owned land in their home village, which land was being forcibly occupied by the loan shark and his people.  The applicant thought that they were afraid of her return to reclaim her father’s land.

(10)   The applicant also sought protection under articles 14[6] and 19[7] of s 8 of the BORO as she thought she should be entitled to settle at her home and live with her family.

8.The applicant sought a further screening interview with the Director’s representative(s) so that she could better explain her case.  After considering the Additional Allegations, the Director’s representative(s) did not consider it necessary to conduct another screening interview with the applicant as there was no issue that they wished to clarify with her.

9.Notwithstanding the Additional Allegations, by the 2^nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[8] or to engage BOR 2. Further, it was not accepted that protection under articles 14 or 19 raised any non-refoulement obligation.

Appeals to Board and Board’s Decisions

10.The applicant appealed to the Board against the 1^st Director’s Decision on 19 June 2015 (“1^st Board Appeal”).

11.The 1^st Board’s Decision disposed of the 1^st Board Appeal.

12.After a rehearing on 24 October 2016, at which the applicant testified before, and answered questions by, the Board through an Indonesian interpreter, the Board was not persuaded that the applicant would face any torture risk, persecution risk or “BOR 3” risk in Indonesia and dismissed the 1^st Board Appeal on 5 May 2017. 

13.In so doing, the Board observed that the applicant had never met the loan shark; that neither the applicant nor her family had been actually harmed by the loan shark; that the applicant had not been in contact with her parents since October 2011; that the dispute is of a private nature with no involvement of any state actor or concern with any convention reason; that the applicant’s experiences did not attain a minimum level of severity to amount to persecution or torture or to fall within article 3 of s 8 of the BORO.

14.The Board further went on to find that even if the applicant had been able to show that she faced a real or genuine risk of harm as claimed, it would have found such risk to be confined to the area near to where her family lived and there was no circumstance that would make it unreasonable for her to relocate within Indonesia. There was no evidence to suggest that either the applicant’s parents or the loan shark would have the means or inclination to spend time and resources to locate the applicant throughout Indonesia.

15.The applicant appealed to the Board against the 2^nd Director’s Decision on 11 December 2017 (“2^nd Board Appeal”).

16.Having considered all the information and materials supplied by the applicant and the relevant COI, the Board decided that it was not necessary to hold an oral hearing in relation to the NRF Claim under BOR 2.  By the 2^nd Board’s Decision handed down on 9 August 2018, the Board dismissed the 2^nd Board Appeal. The Board found no present or foreseeable breach of the right to life. There was no evidence showing that the applicant would be at risk of harm from capital punishment inflicted by the government of Indonesia or face harm from the Indonesian government that would place her life at risk.

Application for leave for judicial review and Judge’s Decision

17.By the Form 86, supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decisions (see footnotes 1 and 2 above) on grounds summarised by the Judge in [10] of the Form CALL-1 as follows:

“(1) she did not obtain assistance on the language or legal assistance in her appeal to the Board;

(2) she was not given any legal assistance for this application;

(3) the Director and the Board did not maintain high standard of fairness;

(4) no legal assistance for her BOR 2 risk;

(5) the Board’s Decision was not read to her;

(6) the Adjudicator failed to take into account her additional facts and ground;

(7) the Board failed to consider her case properly, taking into account of the rapid changes in Indonesia; and

(8) the Director failed to show his balancing when he preferred to the COI.”

18.After hearing the application in open court at which the applicant was present and was assisted by an Indonesian interpreter, the Judge refused leave. His reasons can be found in [21] to [30] of the Form CALL-1:

“21. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She understands the Board’s Decision. She considered that she had had a fair hearing before the Board. I shall now consider her grounds above.

22. The applicant does not have the absolute right to legal representation at every stage of the proceedings as was held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22. She did not (sic) language assistance is not a valid ground as held by the Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019.

23. Grounds (1), (2) and (4) fail.

24. Grounds (3), (6) and (7) are her opinions without any evidence in support of them. They fail.

25. Ground (5) is inconsistent with what she said in court.

26. Ground (8) concerns the Board’s discretion as to what evidence should be adopted and given weight. It is a matter of common sense and experience of the Adjudicator. It will not be necessary for the Adjudicator to set out the reasons for exercising his discretion in the evaluation of the evidence before him. The applicant has not identified in what respects had the Adjudicator exercised his discretion unreasonably. This ground fails too.

27. It is obvious that the Board had accepted the facts as she alleged. It is quite clear that her case has nothing to do with state activities. It was purely a private matter of a loan shark trying to press for repayment of money and other advantages in lieu. The state should be able to provide protection for her. Having rigorous examination and anxious scrutiny of the Board’s application of the relevant statutory provisions and the Convention to the applicant’s case, this Court finds that the Board has come to the right conclusion.

28. 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.

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

CONCLUSION

30. 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

19.By the notice of appeal filed herein on 23 September 2019, the applicant set out her grounds of appeal in 13 (somewhat repetitive) paragraphs, which can be distilled into the following general and specific complaints:

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

(2)  First, the finding of availability of state protection should not have been made if the Director had given effect to the COI that corroborated the applicant’s claim which showed the ineffectiveness, inefficiency and even corruption of the police (“Ground 2”).

(3)  Second, notwithstanding her inability to read or write English, after the 1^st Director’s Decision, she had not been provided with any language or legal assistance, without which she could not understand the decisions that had been made against her and further had to formulate grounds for judicial review and grounds of appeal and to appear at hearings with such lack of understanding as a litigant in person much to her disadvantage (“Ground 3”).

(4)  Third, neither the Board nor the Judge had given any allowance to the applicant for such handicap (“Ground 4”).

(5)  Fourth, 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”).

20.In her skeleton submission dated 21 January 2020, the applicant sought a reconsideration of her case on the bases of unfairness and unreasonableness. She again questioned why COI in support of her assertions was completely “thrown out”. It was not true that she could understand the Board’s Decisions. An explanation of the Board’s Decisions by her friend was insufficient to give her an understanding of the “legal jargons”. Nor did she mention to the interpreter in court that she was satisfied with or understood the Board’s Decisions or that she had had a fair hearing before the Board. What she intended to confirm was that she understood that her appeals had been dismissed. The Judge had therefore failed to exercise “diligent duty of care” towards the applicant as a “non-represented litigant who does not understand 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.

21.The applicant appeared in person at the hearing of the appeal on 19 May 2020.  Upon being questioned by the court, save for the facts that the loan shark and his gang had attacked her family with bare hands and that her father had complained about the attack(s) to the authorities to no avail, the applicant denied having made any of the other Additional Allegations to the Director. She did not add anything to her notice of appeal or skeleton submissions.

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

22.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

23.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. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[9]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

24.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.

Ground 2

25.As stated in [23] and [24] above, the Director and the Board are tasked with finding facts, including the availability of state protection or otherwise, which would necessarily involve the weighing of competing COI.  Neither the Court of First Instance nor the Court of Appeal should re-assess this or other factual aspects of a non-refoulement claim, at least not without cause.

Grounds 3, 4 and 6

26.Turning then to Grounds 3, 4 and 6 (legal representation and interpretation services), 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.

27.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.

28.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/after these hearings hampered the presentation of her case.

Ground 5

29.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.

30.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

31.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