Nila Agustina v. Torture Claims Appeal Board

CACV 118/2020

[2020] HKCA 909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 118 OF 2020

(ON APPEAL FROM HCAL 1172/2018)

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BETWEEN

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court):

Introduction

1.On 6 May 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant the applicant leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 11 June 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 16 October 2015 and 29 December 2016 rejecting the applicant’s non-refoulement claim.

2.On 18 May 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.The applicant is an Indonesian national.  She was previously employed as a foreign domestic helper.  She last arrived in Hong Kong on 10 April 2013 with permission to work as such until the expiration of her contract on 10 April 2015 or within 14 days of termination, whichever was earlier. 

4.On 20 November 2013 the applicant’s employment was prematurely terminated.  She has overstayed since 5 December 2013 and was arrested by the police on 20 December 2013.  The applicant raised a non-refoulement claim on 31 December 2013.

5.The applicant’s claim was based on the fear that if she returned to Indonesia, she would be harmed or even killed by a loan shark.  The factual background was succinctly summarized by the Judge in [1] – [4] of the Form CALL-1 ([2020] HKCFI 142).

6.By notices of decision dated 16 October 2015 and 29 December 2016, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and decided the claim against her.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3]; the latter BOR 2 risk[4].

7.The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 13 January 2017.  The Board found the evidence of the applicant to be unreliable and, in any event, any problem with the loan sharks would merely be a private dispute. The Board considered that reasonable state protection was available; and internal relocation, viable.  The Board dismissed the applicant’s appeal on 11 June 2018 on all the applicable grounds.

Decision of the court below

8.On 22 June 2018, the applicant sought leave to apply for judicial review against the Board’s decision.  Her grounds as stated in her affirmation in support of her Form 86 were set out at [10] of the Judge’s decision (see following paragraph).

9.Following a hearing at which the applicant appeared in person, the Judge refused to grant leave on 6 May 2020 to apply for judicial review.  His reasons were set out at [10] – [15] of the Form CALL-1 ([2020] HKCFI 142, HCAL 1172/2018), as follows:

“10.  On 22 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  procedural impropriety in failure to conduct sufficient independent inquiry into the relevant COI or to conduct a critical analysis of them or to provide adequate reasons as to why certain materials which supported its decision were preferred over those which did not or to cherry pick those COI which supported its conclusion;

(2)  error/misdirection in law in failing to apply or properly apply the principle concerning the obligation of the state to adopt reforms and means to protect its citizens;

(3)  error/misdirection in failing to consider the psychological non-physical aspects of torture and/or CIDTP;

(4)  irrationality in failing to apply high standards of fairness in assessing her claim;

(5)  error/misdirection in law in failing to consider the psychological impact of the facts raised as part of the Applicant’s claim including threats and abusive language which she had suffered; and

(6)  irrationality in providing no sufficient basis to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

11.  These are however all 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 adjudicator failed to apply high standards of fairness in assessing her claim, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state reforms to her claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or procedural unfairness in her process before the Board or in the Board’s decision being clearly and properly identified by the Applicant with sufficient particularity, I do not find any of these grounds reasonably arguable for her intended application.

12.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  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.

14.  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.

15.  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.”

Appeal to this Court

10.On 18 May 2018, the applicant filed her Notice of Appeal against the Judge’s decision, in which her stated grounds were:

(1)  the Respondent unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that it did not satisfy the requirement;

(2)  the Adjudicator acted in a procedurally unfair manner;

(3)  the Respondent’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense, or as a result of procedural errors or unfairness;

(4)  the Respondent failed to meet the greater care and duty owed to a self-represented claimant;

(5)  non-refoulement claimants should lodge official torture claims with the Director;

(6)  the applicant was confused and did not understand what happened in the hearing as the hearing bundle was not provided earlier or with interpretation;

(7)  the applicant answered all questions honestly, and it aggravates her that her credibility was found questionable; further the hearing was unfair due to the Board’s lack of care in making appropriate arrangements in relation to the hearing bundle.

11.This Court directed on 1 September 2020 that the applicant must lodge her written submissions on appeal by 30 September 2020, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials that had already lodged.  As the applicant failed to lodge any submissions as directed, this appeal is disposed of on paper without a hearing.

Legal principles

12.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  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 scrutinizing 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

13.The applicant did not in her grounds of appeal provide any particulars in support, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing that decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

14.As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed on that basis alone.

15.As the arguments in the applicant’s grounds of appeal could have been but were not raised before the Judge, that is another reason why they should not be entertained.

16.Finally, the Board rejected the applicant’s claim for non-refoulement protection based on its assessment that her evidence was unreliable; that the risk of harm, if any, stemmed from a private dispute; and that state protection was available and internal relocation viable.  Such findings are squarely within the province of the Board. The court will not interfere with such findings unless they are reversible on public law grounds.

17.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  He has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave. There is no reasonably arguable ground to challenge the decision of the Judge.

18.For these reasons, we do not see any prospect of success in this appeal and we dismiss the appeal.

The applicant acting in person