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

CACV 343/2020

[2021] HKCA 172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 343 OF 2020

(ON APPEAL FROM HCAL NO 2410 OF 2018)

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J U D G M E N T

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

Introduction

1.On 27 July 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant 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 18 October 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 25 September 2017 rejecting the applicant’s non-refoulement claim.

2.On 10 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.The applicant is an Indonesian national.  She first arrived in Hong Kong on 5 January 2008 to work as a foreign domestic helper.  She last entered Hong Kong on 15 August 2014 and was given permission to remain as a foreign domestic helper until 7 June 2016 or 2 weeks after termination of her contract, whichever was earlier.  On 2 May 2016 she was arrested for theft and her contract was prematurely terminated the next day.  She lodged a non-refoulement claim on 26 July 2016. 

4.The applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed or even killed by her creditors and/or her husband. The factual background was succinctly summarized by the Judge at [5] of the Form CALL-1 ([2020] HKCFI 1657).

5.By notice of decision dated 25 September 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 21 June 2018, during which the applicant was interviewed by the Board.  The Board found that the applicant was an evasive and unconvincing witness, and that little of her evidence could be relied upon. The Board determined that there is no credible evidence of a loan, and in any event, she had not heard from the alleged creditors since 2004, and there is no real risk her husband, whom she last contacted in 2014, would harm her since he has remarried after divorcing her. The Board concluded that there was no real risk of harm in the event of the applicant returning to Indonesia, and that internal relocation was viable. Thus on 18 October 2018 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

7.On 31 October 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision of 18 October 2018. She did not state any grounds for seeking relief in either her Form 86 or affirmation in support.

8.Following a hearing on 3 September 2019 at which the applicant attended in person before the Judge, on 27 July 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [13] – [16] of the Form CALL-1 ([2020] HKCFI 1657, HCAL 2410/2018) as follows:

“13. The applicant appeared before me. She said that she was free to state her case before the Adjudicator at the Appeal Board hearing.

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

15. The Court of Appeal in Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that the immigration officer and the Adjudicator are the facts finders. There is nothing to show that this Court should intervene with their decisions.

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

Appeal to this Court

9.On 10 August 2020, the applicant filed her Notice of Appeal against the Judge’s decision. Her ground of appeal was that she does not know English and court procedure, and that she cannot express her situation very well because of her language handicap.

10.On the same day that she filed her Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

11.Pursuant to the Court’s directions of 17 December 2020, the applicant lodged her written submissions on appeal on 12 January 2021. 

12.In those submissions, the applicant argued that the Board’s determination of her claim was procedurally unfair because she was not provided with proper legal and language assistance.  The applicant argued that the Board’s decision was not read back to her in her language, and as such, she did not thoroughly know how her claim was determined and thus it was not easy for her to appeal.

13.The applicant also submitted that there was procedural unfairness due to public policies of trying to dispose of non-refoulement claims as quickly as possible, and that such policies indicate a discriminatory attitude on the part of the authorities.

14.Nevertheless, in those submissions the applicant did not provide any details or particulars in support of her arguments.  Nor did she have anything to add when she appeared before this court.

Legal principles

15.In assessing the merit of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

16.As mentioned earlier, the applicant did not in her Notice of Appeal or submissions provide any particulars in support of her arguments, and did not identify any specific errors in the Judge’s decision, or any other specific potential grounds for reversing the Judge’s 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.  She did not have anything to add when she appeared before this court.

17.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.

18.It is insufficient for the applicant to argue that a lack of proper legal and language assistance resulted in procedural unfairness, without at least raising specific details as to where or how the Board or the Judge fell into error or were unfair or unreasonable.  The applicant has not raised such details; thus this argument is untenable.

19.The applicant was legally represented and provided with language assistance on her claim before the Director.  An Indonesian language interpreter was present to assist at both the Board hearing as well as the hearing before the Judge.

20.In any event, as this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403. 

21.In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the applicant’s reliability and credibility.  The Board concluded that there was no real risk of harm and that internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

22.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified, and his decision was correct. 

Order

23.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person