Farida Dharma Wanti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 278/2020

[2021] HKCA 79

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 278 OF 2020

(ON APPEAL FROM HCAL NO 1813 of 2018)

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BETWEEN

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Before:  Hon Chu JA and S T Poon JJ in Court

Date of hearing:  14 January 2021

Date of Judgment:  21 January 2021

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 9 July 2020 dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 30 August 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 30 December 2016 rejecting her non-refoulement claim.

2.The applicant has consented to her appeal being heard by two judges of the Court of Appeal.

3.The applicant is a national of Indonesia.  She has worked as a domestic helper in Hong Kong from about 2006 to about 2013.  She entered Hong Kong again on 27 January 2015 as a visitor.  She overstayed but surrendered herself to the Immigration Department on 14 October 2015 and was released on recognizance.  On 9 May 2016, she was found working in a restaurant and was arrested by the police.  She was then convicted for breach of condition of stay by taking up employment.  A removal order dated 7 October 2016 was issued and served on the applicant.  On 27 October 2016, she was again released on recognizance. 

4.The applicant first lodged a written representation to the Immigration Department on 20 January 2016.  She filed a non-refoulement claim form on 10 November 2016.

5.The applicant’s claim is based on her fear of being tortured or killed by her husband and debt collectors if she was to be returned to Indonesia.  Her case was set out in detail in [6] of the Director’s decision dated 30 December 2016 and summarised by the Judge in [4-6] of the Form CALL-1[1].

6.The applicant’s case, in brief, is as follows.  The applicant was married to her husband in about February 2005.  Her husband would hit the applicant for no reason from time to time.  The applicant reported two such incidents, one in about April 2005 and another in about July 2005.  In neither incident did the applicant suffer from any life-threatening physical harm.  The applicant reported her husband’s violence to the local police but no action was taken against him by the police.  The applicant decided to leave Indonesia and her husband and had taken up employment as a domestic helper in Hong Kong from about 2006 to about 2013.  In about 2008, the applicant was informed by her parents in Indonesia that her husband has taken out loans in her name in Indonesia in about 2007 and that creditors or loan sharks have asked her parents for her whereabouts.  The applicant enquired with her husband but he replied that he knew nothing about the loans.  Besides, from about late 2011 to mid-2012, the applicant had “a boyfriend” which her husband was aware of.  The applicant reported that her husband threatened to kill her for her being unfaithful.  In about 2013, the applicant changed her telephone number and ceased all communication with her husband after a heated conversation during which the applicant asked for a divorce. 

7.The applicant returned to Indonesia and stayed in her parents’ home in about 2008 and April 2014.  At each time the applicant entered Indonesia, stayed for about 2 weeks and then departed without any issue. 

8.By his decision dated 30 December 2016, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds. 

9.By its decision dated 30 August 2018, the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found that there were inconsistencies between the versions the applicant has given in the non-refoulement form and the evidence she gave at the hearing.  In particular, the applicant gave two different accounts of how she met and married her husband.  The Board noted that the applicant claimed to have married her husband, who was a salesperson, in about 2005, received domestic violence and then moved to Hong Kong.  At the hearing, however, the applicant told the Board that she met her husband, a truck driver, in about 2008 through introduction of a friend.  The applicant told the Board at the hearing that the loan taken out without her consent by her husband in Indonesia amounted to about 500 million Indonesian Rupiah, instead of 260 million as stated by her in the non-refoulement form.  The Board did not accept that the applicant was being chased by any loan shark.  The applicant also failed to give particulars of her alleged “boyfriend”, including his name.  We note that the Board has considered the applicant’s evidence in detail regarding her alleged situation before finding it inconsistent and incredible.  The Board went on to find that the applicant could not substantiate any ground that would entitle her to non-refoulement protection. 

Application for leave to start judicial review

10.On 3 September 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  As noted by the Judge in [13] of the Form CALL-1, the applicant “did not set out any ground in support of her application.  Nor did she say that the Board was in error in coming to its decision.”

The Judge’s Decision

11.After hearing the applicant on 9 July 2020, the Judge refused leave for the reasons set out in [14] – [17] of the Form CALL-1 :

“14.  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 her friend explained to her the Board’s Decision.

15.  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.

16.  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.’

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

Appeal to Court of Appeal

12.By a Notice of Appeal filed on 22 July 2020, the applicant appealed against the refusal of leave for judicial review on the following ground (sic):

“I am not satisfied with the decision because its away form facts and reality which are related with my case. There is no any Transparency in these dicision. please accept my application and allow me to process further my case”

Skeleton Submissions

13.On 30 November 2020, the applicant lodged her written submission, by which the applicant repeatedly asserted that her life would be in danger if she were to return to Indonesia and that the authorities there could not protect her.  She further accused the Board of ignoring “so many things” regarding her case, from which she then complained that all the decisions concerning her case were not “transparent”.  The applicant has however not given any particulars of any aspect of the non-refoulement claim, whether legal or factual, that had been overlooked.  The applicant requested for this court’s assistance so that she could extend her stay in Hong Kong.

Legal Principles

14.The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

15.The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

16.When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6] and we will not repeat them here. 

17.Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

18.We heard the appeal on 14 January 2021. At the hearing, the applicant had nothing to say. 

Discussion

19.Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

20.We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

21.In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  Nor do we see any merit in the criticism of lack of transparency.  The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed.  There is no basis to disturb the Judge’s decision. 

22.For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, appearing in person.