Re Laela Fitriani

CACV 116/2020

[2021] HKCA 435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 116 OF 2020

(ON APPEAL FROM HCAL NO. 1905 OF 2018)

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Before:  Hon Poon CJHC and Barma JA in Court

Date of Judgment: 1 April 2021

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J U D G M E N T

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The Court:

1.This is an appeal against the decision of Deputy High Court Judge K W Lung given on 8 May 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 31 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 January 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Indonesia.  She entered Hong Kong on 22 June 2010 to work as a foreign domestic helper.  Her employment was terminated prematurely. She overstayed and was arrested by the police on 18 February 2016 for breach of condition of stay.  She was convicted and sentenced to 5 months of imprisonment.  She lodged a non-refoulement claim on 30 May 2016. 

3.The applicant’s claim was based on threats from a man (Adi) who sexually harassed her.  She also received threats from creditors.  The details of the applicant’s claim have been summarised by the judge at [3] to [4] of the CALL-1 Form.

4.By a Notice of Decision dated 23 January 2018 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.The applicant appealed to the Board.  After a hearing on 18 May 2018, the Board dismissed the appeal on 31 August 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [61] of the Board’s Decision, the Board did not accept that the applicant will be subject to harm from the creditors upon her return.  The Board accepted at [76] that she might be subject to risk of degrading treatment from Adi if she returned to her home village.  However, the Board was satisfied at [63] and [77] that state protection would be available for the applicant and at [78] that internal relocation would be viable.

The judge’s decision

7.The applicant filed a Form 86 on 11 September 2018 which contained no ground for seeking relief.

8.In her affirmation in support of the leave application dated 11 September 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [11] of the CALL-1 Form:

(1)  the Hearing Bundle was given to her shortly before the appeal hearing and she did not understand it as there was no translation;

(2)  she was not provided with legal representation for the appeal and the present application for leave for judicial review;

(3)  she did not obtain assistance on the language as English is not her mother language;

(4)  the Director had adopted a uniform approach in the screening and he had cherry picked the Country of Origin Information to defeat her claim;

(5)  the Board’s Decision was not read to her;

(6)  the Board’s finding that she could relocate herself in Indonesia was wrong as she had not assessed the geographical situations of Indonesia; and

(7)  the Board’s view that she would have state protection was also wrong.

9.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [20] of the CALL-1 Form:

“14. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. Her lawyer had explained the Director’s Decision to her. The interpreter had explained the Hearing Bundle to her.

15. She said that she was unable to answer all of the Adjudicator’s questions well because she was not clear about the questions. When asked why she did not clear with the Adjudicator before answering the questions, she did not give any answer.

16. She also said that she could not fully understand the contents of the Hearing Bundle. When asked why she did not go to the Duty Lawyer Scheme, the Immigration Department or the Board for assistance, she simply said she did not know she could do so.

17. I put the Board’s findings above to her and asked for her comments. She said that she had no comments.

18. It is quite clear that the Board accepted the major parts of her alleged facts, in particular, Adi’s sexually molestation and even rape and her debt to Anoh. However, the Board had applied the relevant statutory provisions and the Convention to her case and found that her case did not come under the protection of the law and the Convention.

19. Having rigorous examination and anxious scrutiny of the Board’s Decision, I find that there is nothing miss in the Adjudicator’s decision.

20. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

Grounds for appeal

10.In the Notice of Appeal dated 15 May 2020 the applicant wrote:

“Leave to apply for judiciary review be refused.”

11.In her supplemental notice of appeal dated 12 August 2020, the applicant gave a summary of the events leading to her claim.  She further stated that:

“…I just learnt from other persons that people like me who face risk to his life in his country of origin he should lodge official torture claim with the Director of Immigration, by way of written signification. I lodge a non-refoulement claim based upon my fear that my life will be in danger if I return to my home country Indonesia.”

12.The applicant agreed by a letter of 15 May 2020 that the appeal could be heard by two judges.

13.The applicant failed to comply with the direction made by this court on 22 August 2020 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.  The hearing date on 24 November 2020 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

14.Neither the notice of appeal nor the supplemental notice of appeal identified any error in the judge’s decision.  The applicant has not advanced any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it. 

15.We also do not see any public law error in the Board’s Decision which held that state protection would be available to the applicant and that internal relocation within Indonesia would be a viable option.

16.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant, acting in person