Re Eka Maryani

CACV 45/2021

[2021] HKCA 1108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 45 OF 2021

(ON APPEAL FROM HCAL 226 OF 2019)

_________________

_________________

Before: Hon Barma JA and K Yeung J in Court

Date of Hearing: 26 July 2021

Date of Judgment: 17 August 2021

_________________

J U D G M E N T

_________________

Hon K Yeung J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge C P Pang (the “Judge”) given on 21 January 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 11 January 2019 (the “Board” and the “Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 20 March 2018 rejecting the applicant’s non-refoulement claim (the “Director” and the “Director’s Decision”).

Background

2.The applicant is a national of Indonesia.  She last arrived in Hong Kong on 12 July 2016 to work as a foreign domestic helper.  Her contract was prematurely terminated on 23 July 2016.  She overstayed and was arrested on 8 November 2017.  She lodged a non-refoulement claim on 19 and 22 November 2017. 

3.The applicant’s claim was based on threats from her 3 sisters after she had sold the family’s house and land without their knowledge.  She claimed that she did so to repay her debt owed to a loan shark.  The details of the applicant’s claim have been summarised by the Judge at [3] of the CALL-1 Form (with reference to the Board’s Decision).

4.By 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 11 October 2018, the Board for the reasons set out in the Board’s Decision dismissed the appeal.  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [48] and [59] of the Board’s Decision, the Board found that the majority of the applicant’s case was inconsistent and implausible, and that her claim for protection not credible.  The discrepancies which the Board have carefully considered include:

(1) why the applicant feared returning to Indonesia, whether she would be harmed by her siblings (as claimed during the hearing), or by the loan shark (as claimed in the non-refoulement claim form);

(2) much of the applicant’s claims regarding the business she had allegedly started, and for which she borrowed money from the loan shark, the problems she experienced when she became unable to repay her debt, and her action in selling her family’s house and land without their consent, which the Board found to be inconsistent and implausible;

(3) how she could have legally sold the house and land when she was not the owner; and

(4) whether her mother had died of heart attack upon learning the sale of the family home (as claimed by the applicant in the written evidence), or whether her parents are residing in Indonesia (as claimed during the hearing).

The Judge’s decision

7.The applicant filed a form 86 on 24 January 2019.  She did not set out therein any ground on which relief is sought.

8.In her affirmation in support of the leave application filed on 24 January 2019, the applicant complained of procedural impropriety or irrationality (in the sense of “failure to properly apply para 2 of the UN committee against Torture General Comment No.2”, “failure to conduct sufficient inquiry into the relevant country of origin conditions” and “failure to reasons for assessment of Lack of BOR 3 risk”), and error of law (in the sense of “failing to take into account the considerations of psychological strain and threats to [her] personally or threats to [her] directly to kill [her]”).  She further complained that there was no sufficient basis to conclude that she would not be at risk of being subject to torture or cruelty, inhuman and degrading treatment or punishment upon refoulement.

9.The applicant was absent from the oral hearing before the Judge, who accordingly dealt with the application on paper.

10.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 give leave for judicial review.  The Judge gave the following reasons at [15] to [23] of the CALL-1 Form:

“ 15. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found her to be an incredible witness. The Board rejected her account of primary facts based on the major inconsistencies in her evidence and its implausibility. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

16. As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

17. The applicant’s complaints in her affirmation were only bare assertions without details or evidence in support. They are not viable grounds for the judicial review and are not reasonably arguable to challenge the findings of the Board.

18. I find that the evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

19. The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility with detailed reasons set out in its decision. I do not find any reasonably arguable basis to challenge the findings of the Board.

20. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

21. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

22. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

23. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

Grounds for appeal

11.In the Notice of Appeal filed on 3 February 2021, the applicant states that:

“ 1) In my review judgment, the [Judge] failed to realized my fear in my country that I would face from the creditors, who will killed me, because of debt. I will face sufficient risk upon refoulement.

2) Failure to observation the country of origin condition that the authority of my country will not able to protect me from the enemy.”

12.In her skeleton submissions lodged on 17 June 2021, the applicant submitted that:

(1) the Board and the Director failed to make sufficient inquiries into the country of origin conditions;

(2) the Board and the Director failed to consider her fear from her enemies and her severe mental distress; and

(3) the Board and the Director failed to properly assess her claim for protection based upon persecution risk.

13.The applicant agreed by a letter of 3 February 2021 that the appeal could be heard by two judges.  We heard the appeal on 26 July 2021.

14.During the hearing on 26 July 2021, the applicant made no oral submission.

Discussion

15.The Judge noted that the Board rejected the non-refoulement claim mainly on the basis of its adverse finding on the applicant’s credibility. The highlighted discrepancies are indeed glaring.  The applicant was asked by the Board to clarify those discrepancies, but was unable to provide any explanation ([58] of the Board’s Decision).  The Judge concluded that there could not be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.  The Judge found that the evidence could hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

16.The applicant has failed to identify any error in the Judge’s decision or reasoning. 

17.The applicant has been disbelieved.  The facts alleged by her have been rejected.  Her alleged fear was unsubstantiated.  Any need for protection to her by her country of origin “from the enemy” is neither made out nor engaged.

18.The Grounds of Appeals have no merit.  The appeal is dismissed.

The Applicant appeared in person