Re Wagiyah

CACV 242/2020

[2020] HKCA 1068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 242 OF 2020

(ON APPEAL FROM HCAL NO 1873 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) on 24 June 2020 in HCAL 1873/2018 refusing leave to the applicant to apply for judicial review.  By that decision, the Judge refused her application for 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 30 August 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 23 November 2017.

Background

2.The applicant is a national of Indonesia. She came to Hong Kong as a domestic helper for multiple employment contracts, the last time being on 2 June 2014 and was permitted to remain until 2 February 2016.  She raised her non-refoulement claim by way of written representation on 7 August 2014 on the basis that if she were to return to Indonesia, she would be harmed or even killed by loan sharks for her failure to repay her debt. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1288.

3.By the Notice of Decision dated 23 November 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 17 April 2018, the Board dismissed the appeal on 30 August 2018.  In its decision, the Board found significant inconsistencies in the applicant’s oral evidence in relation to her alleged loans with the information set out in the non-refoulement claim form (“NCF”) and that it reflected poorly on her credibility and the reliability of her evidence. On this basis, the Board did not accept the applicant’s claim that she took two loans from two different loan sharks in Indonesia and that she and her family had been threatened or evicted, and that she would face any of the proscribed forms of harm should she returns to Indonesia. For the aforesaid reasons, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

5.On 10 September 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decision of the Board.  As summarised by the Judge in [12] of his decision, the applicant, in her supporting affirmation, set out the following grounds for her intended challenge:

(1)  Procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions.

(2)  Procedural impropriety/irrationality: failure to reason for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk.

(3)  Error/misdirection in law: failing to take into account the consideration of psychological strain and threats to her personally or threats to her directly to kill her.

(4)  Procedural impropriety: failure to consider the concept of extended state acquiescence as expounded by Lam J. (as he then was) in TK v Jenkins.

(5)  Procedural impropriety: failure to assess her fear properly. Her house had been taken over and she would be in danger if she returned to Indonesia.

6.The Judge heard the application 7 January 2020 and by the CALL-1 Form of 24 June 2020, the application was refused. The Judge, after summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, gave the following reasons in refusing leave at [13] – [18] of the CALL-1 Form:

“13.  The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and the interpreter of the Board had explained to her the Board’s Decision.

14.  I put the Board’s findings to her and asked her if she had any comments on them. She said that she had no comments.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

16.    The five grounds above do not sustain because they are either her own opinions or bare allegations without any evidence or particulars in support of them.

17.    There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

18.    The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

The Appeal

7.On 6 July 2020 , the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal are as follows:

“1. In my Judicial Review Decision the Honourable Judge did not consider my fears in my claim I was stated that why I would fear to return to my country. In my affirmation I had sated my grounds against the Torture Claims Appeal Board and the Director which was not considered.

2. Failed to consider the Country of origin conditions (COI) information in to Country of origin.”

8.In compliance with the direction given by Master Tsui on 9 October 2020, the applicant lodged her written submissions on 19 November 2020.  In her written submissions, she advanced the following:

(1)  The Board and the Director failed to comply with their duty to make sufficient inquiries into the Country of origin conditions of her claim and adopted a passive approach in contravention of the high standards of fairness as laid down in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and TK v Michael Jenkins & Anor [2013] 1 HKC 526.

(2)  The Board and the Director had failed to take into account and/or give proper weight to relevant considerations and materials which they should have, and hence the decisions were illegal.  Specially, the Board and the Director had failed to give due regard to:

(a)  the fact she would face real risk upon refoulement because of her fear of her enemies and that her life would be in danger; and

(b)  the fact that she had been placed in severe mental distress and that she would definitely face difficulty from her enemies upon refoulement.

(3)  Her claim is not personal or private in nature as she fled for her life from a group of murderer who will hunt her wherever she hides in Indonesia. There were no clear directions from the decisions why she would not be a subject of persecution upon refoulement.  The Board and the Director failed to assess her fear to return to her country as her enemies are still looking for her. 

9.We heard the appeal on 22 December 2020 and the applicant   had nothing further to say.  

General Principles

10.Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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

11.After reviewing the materials placed before this Court, we agree with the Judge that the applicant’s application is not reasonably arguable and the intended judicial review has no prospect of success.

12.Having read the decision of the Board, we take the view that it was perfectly open to the Board to come to its conclusion on the lack of real risk upon her return to Indonesia.  It is plain and clear that the applicant’s case of risk of harm had been carefully considered and justifiably rejected. 

13.In our view, both the Director and the Board had fully reviewed the applicant’s case.  We are satisfied that the findings of the Board and the observations of the Judge are well based and without flaw. 

14.For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

The applicant acting in person

[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.