Anik Purwati v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 225/2020

[2021] HKCA 39

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 225 OF 2020

(ON APPEAL FROM HCAL NO 2952 OF 2018)

____________

____________

Before: Hon Kwan VP, E Toh and G Lam JJ in Court

Date of Hearing: 5 January 2021

Date of Judgment:  8 January 2021

_________________

J U D G M E N T

_________________

Hon G Lam J (giving Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 16 June 2020[1] refusing to grant leave to the applicant to seek judicial review of the Torture Claims Appeal Board (“the Board”) in respect of her non‑refoulement protection claim.

2.The applicant is a national of Indonesia.  She is 33 years old.  She previously worked in Hong Kong as a domestic helper but her contract was terminated on 21 June 2014 before its expiry.  She was arrested for theft and absconded from police bail on 18 August 2014. She was later convicted of theft and sentenced to two months’ imprisonment. After serving her sentence she raised her non‑refoulement claim on 17 January 2015 and on several dates shortly afterwards.  Her claim was made on the basis that she would be harmed or killed by her ex‑husband, who was a gambler and a violent man, if she were to return to Indonesia.

The Director’s decision

3.By a Notice of Decision dated 13 March 2018, the Director of Immigration (“Director”) rejected the applicant’s non‑refoulement claim on all applicable grounds including torture risk,^[2] BOR 2 risk,[3] BOR 3 risk[4] and persecution risk.[5] 

4.The Director considered that the asserted ill‑treatment from the applicant’s ex‑husband had not attained the requisite minimum level of severity for non‑refoulement protection, and that her alleged fear was localized and could be avoided by relocation.  The applicant was considered fully capable of relocating to other areas in Indonesia and the availability of state protection further lowered or negated the level of risk.  The Director considered that the dispute was a private matter which had nothing to do with the applicant’s race, religion, nationality or membership of a particular social group or political opinion. 

The Board’s decision

5.The applicant appealed to the Board against the Director’s decision.   An oral hearing was held on 13 November 2018.  The Board noted that the applicant had not sought to contend that she came from a country where the laws and society discriminated against her as a woman who had suffered abuse from a violent husband or ex‑husband.[6]  The Board accepted that the ex‑husband had ill‑treated and harmed the applicant on various occasions in around 2010, such as by bare‑handed assaults, verbal abuses and throwing objects at her,[7] but did not accept that they had reached the requisite threshold of severity.[8] The Board further found that the applicant had effectively cut ties and contact with her ex‑husband, and that there was nothing to suggest her ex‑husband would or could pursue her if she returned to Indonesia.[9]  She failed to show a genuine and substantial risk of being subjected to ill‑treatment if she returned.[10]  She also failed to show any evidence of official acquiescence or of passive acquiescence.[11]  The applicant had not claimed that there existed a consistent pattern of gross, flagrant or mass violations of human rights in Indonesia.[12]  In the result, the Board held that the applicant’s claim failed on all applicable grounds and rejected her appeal on 13 December 2018.

The intended judicial review

6.The applicant filed a Form 86 and a supporting affirmation on 24 December 2018 to seek leave to apply for judicial review against the decision of the Board.  In an exhibit “A” to her affirmation she set out the following grounds:

(1)  The Board erred by failing to maintain the applicable high standard of fairness by not holding an oral hearing to allow her an opportunity to put forward her case.

(2)  The decision maker is under a duty to act fairly.  There is, however, no further elaboration in the document of how the Board is said to have breached such duty.

The judge’s decision

7.The judge dealt with the application for leave to apply for judicial review on the basis of the documents alone as the applicant had not requested a hearing.  The judge said that the applicant had not set out any ground in support of her application, and held that there was nothing to show that the Board had committed any error in applying the law to the applicant’s case and the proposed judicial review was not shown to have any reasonable prospect of success.  Accordingly, the judge dismissed the leave application on 16 June 2020.

The appeal to the Court of Appeal

8.In her Notice of Appeal filed on 30 June 2020, the applicant stated her grounds of appeal as follows:

(1)  The applicant will face hardship if she is to return to her home country.

(2)  The Board has significantly relied on source of news which was not officially recognized or was simply hearsay, and had also relied on cases which were outdated considering the dramatic changes.  The lack of credible source of information has resulted in the Board making groundless speculations.

9.In her skeleton submissions lodged on 11 November 2020, the applicant merely quoted various passages from legal authorities which stress that high standards of fairness are required in the determination of a torture claim, that the court should subject the decisions below to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met, and that an applicant should be given every reasonable opportunity to establish her claim.  The applicant’s submissions, however, do not in any way explain how these principles relate to her appeal or address the facts and circumstances of her case at all.

10.The applicant failed to appear at the hearing of her appeal.  We have considered her appeal on the basis of all the available written materials.

Discussion

11.The general principles regarding an appeal in a case such as the present have been set out comprehensively by the Court of Appeal 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.  While in non‑refoulement cases the court will adopt a heightened standard in scrutinizing the decision of the Board having regard to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials, risk of harm, state protection and viability of internal relocation are matters 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, procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by 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 were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision was otherwise plainly wrong.

12.While the judge should not have said that the applicant had not set out any grounds in her supporting affirmation, because she had in fact done so in exhibit “A”, we are satisfied that those grounds have no merit.  Contrary to her contention, she in fact attended a hearing before the Board on 13 November 2018.  As is evident from the Board’s decision, it conducted a very detailed inquiry into the applicant’s case. There is no basis to suggest that the applicant was not given sufficient opportunity to put forward her claim or that the Board had acted in any way unfairly.  She has failed to demonstrate any error of law, procedural unfairness or irrationality in the decision of the Board.  In our view, the judge was correct in concluding that the proposed judicial review did not have any reasonable prospect of success.

13.Moreover, turning to the applicant’s grounds of appeal, whether the applicant would face the relevant risks if she was to return to her home country had been determined against her by the Board.  The applicant has failed to show specifically how the Board erred in relying on any particular piece of information that was unreliable or outdated.  The applicant’s submissions on this appeal merely consist of recitations of general principles.  There is nothing to show that those principles were ignored or infringed by the judge or by the Board.  No proper ground of appeal focussing on the judge’s decision has been advanced.

14.For these reasons, there is no merit in the appeal which is therefore dismissed.

[1]  [2020] HKCFI 1201.

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

[3]  This refers to the risk of being arbitrarily deprived of life under article 2 of the Hong Kong Bill of Rights.

[4]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[5]  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.

[6]  §23.

[7]  §64.

[8]  §71.

[9]  §§75, 76, 110.

[10]  §112.

[11]  §126.

[12]  §128.