Re Ika Fitriana

CACV 51/2021

[2021] HKCA 1109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 51 OF 2021

(ON APPEAL FROM HCAL 2286 OF 2018)

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Before: Hon Barma JA and K Yeung J in Court

Date of Judgment: 17 August 2021

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J U D G M E N T

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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 2 February 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 15 October 2018 (the “Board” and the “Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 21 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 entered Hong Kong on 3 June 2013 to work as a foreign domestic helper.  Her contract was terminated early on 3 February 2014.  She overstayed and was arrested on 21 April 2015.  She was convicted of breach of condition of stay on 27 April 2015.  She was sentenced to two months’ imprisonment suspended for 3 years.  She lodged a non-refoulement claim on 6 May 2015. 

3.The applicant’s claim was based on threats from her husband.  The details of her claim have been summarised by the Board at [5] of 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 7 September 2018, and for reasons set out in the Board’s Decision, the Board on 15 October 2018 dismissed the appeal.  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [35] of the Board’s Decision, the Board held that it was more likely than not that the applicant experienced domestic violence at the hands of her husband.  However, the Board was satisfied at [37] that state protection would more likely than not be available for the applicant and at [40] that internal relocation would be viable.  The Board therefore dismissed her claims for protection based on all of the applicable grounds.

The Judge’s decision

7.The applicant filed a form 86 on 22 October 2018.  She sought “Judicial Review for My Non-Refoulement claim”.  It contained no ground for which the relief was sought.

8.In her affirmation in support of the leave application filed on 22 October 2018, the applicant exhibited the relevant documents.  She however did not give any ground for judicial review.

9.The applicant did not request an 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 at [14] to [23] of the CALL-1 Form gave the following reasons for his decision:

“ 14. In the present case, the Board gave her account of primary facts and events the most favourable interpretation. The Board did not take issue with the applicant’s asserted primary facts and events. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

15. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation 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.

16. The applicant stated no grounds of the judicial review in Form 86. She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. Nor was there a challenge with regard to procedural regularity and fairness. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17. Indeed, the applicant’s conduct in Hong Kong by her delay in lodging the claim for protection was inconsistent with someone in genuine fear for her life and safety. It could be taken into account as damaging the applicant’s credibility.

18. Further, even if one gives her account the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm. There is no valid reason why she did not seek protection from the police and other authorities and why she cannot relocate to other parts of her country, if refouled.

19. 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.

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 their decisions. Nor do I see any failure on their part to apply high standards of fairness.

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 8 February 2021, the applicant stated that:

“ I am not satisfied with the decision of court and other authorities because I face risk of my life in my home land in Indonesia so I fear to go back my country. I do not know English and court procedure so I should seeking help to some one because of my language handicap and limited resources in Hong Kong.”

12.The applicant failed to comply with the direction made by this Court on 21 May 2021 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.The hearing date on 26 July 2021 has therefore been vacated.  The appeal has been considered on paper based upon the materials before the Court.

Discussion

14.All the grounds of appeal lack particulars and specificity.  They do not identify any error in the Judge’s reasons for his decision.  They are not valid grounds of appeal, and have no merits.

15.Further, and specifically in respect of the applicant’s alleged language handicap and lack of legal assistance, they were not matters advanced before the Court below.  It is not open to the applicant to raise them on appeal for the first time, long after the expiry of the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 524, CAMP 54/2018 at §14(4)). 

16.There is no merit in the appeal.  We dismiss the appeal accordingly.

The Applicant acting in person