Warsi v. Torture Claims Appeal Board/ Non-refoulement Claims Petiton Office

CACV 239/2021

[2021] HKCA 1323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 239 OF 2021

(ON APPEAL FROM HCAL NO 1995 OF 2018)

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Before:  Hon Yuen and Chow JJA in Court

Date of Judgment:  24 September 2021

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JUDGMENT

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

INTRODUCTION

1.On 4 May 2021, DHCJ To (“the Judge”) granted leave to the applicant to amend her Notice of Application by way of Form 86 filed on 20 September 2018 so that the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) became the putative respondent and the Director of Immigration (“the Director”) became the putative interested party in the applicant’s application for leave to apply for judicial review.  In the same decision, the Judge refused to grant leave to the applicant to apply for judicial review of the decision of the Board dated 7 September 2018 in which the Board upheld the decision of the Director dated 7 September 2017 rejecting her non-refoulement claim on all applicable grounds.

2.On 12 May 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

3.Pursuant to the Court’s directions of 8 July 2021, the applicant was required to lodge her written submissions on or before 16 August 2021 but she failed to do so.  The Court further directed that in the event the applicant failed to lodge her written submissions, she would be deemed to waive her right to have an oral hearing of this appeal and elect to have this appeal disposed of on paper.  As it is appropriate to do so, we now proceed to consider this appeal on paper only.

BACKGROUND

4.The applicant is an Indonesian national.  She had worked in Hong Kong as a foreign domestic helper since 2005 and last arrived Hong Kong on 23 March 2014 to take up employment as foreign domestic helper.  However, her employment was prematurely terminated on 20 April 2014, and she had overstayed since 5 May 2014.  She was arrested by the police on 5 January 2016 and then lodged her non-refoulement claim on the basis that if refouled, she would be harmed or killed by (i) a loan shark for a loan borrowed by her ex-husband, and/or (ii) her ex-husband as she refused to settle his debt.  The factual background of this case was succinctly summarized by the Judge in [5] – [9] of the Form CALL-1 ([2021] HKCFI 1254).

5.By a Notice of Decision dated 7 September 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against her.

6.The applicant appealed the Director’s decision to the Board and she attended an oral hearing on 11 June 2018.  By its decision dated 7 September 2018, the Board rejected the applicant’s claim.  In its decision, the Board did not find the applicant to be a credible witness as her evidence was vague, inconsistent and lacked clarities and specifics in relation to her assertions.[5]  At the end of the hearing, she admitted that she had not received any threats from her ex-husband for many years.  The Board found that her claimed fear was not substantiated by any evidence.  Further, she first received the threats in 2013 but she only lodged her non-refoulement claim in January 2016.  Such delay further undermined her credibility.  The Board rejected her evidence on the death threats from her ex-husband and the so-called loan shark.  The Board did not see any real chance that the applicant would be harmed upon her return to Indonesia.  The Board also considered that police protection was available in her home district[6], and internal relocation was a viable option.[7]  For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds.

DECISION OF THE COURT BELOW

7.On 20 September 2018, the applicant filed her Form 86 together with her supporting affirmation for leave to apply for judicial review of the Board’s decision, but she did not advance any grounds for her intended challenge.

8.The Judge heard the application on 28 April 2021.  By his decision dated 4 May 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [16] – [19] of the Form CALL-1 as follows:

“16. The Applicant has not advanced any specific grounds for her application. Despite attempts were made to solicit from her any suggestion of procedural unfairness in the conduct of the appeal before the Board, or unreasonableness and irrationality in the Decision, the Applicant only repeated her fears and her wish not to be returned to Indonesia.

17. The Board had reminded itself that the burden of proof of fear and risk was on the Applicant and reminded itself of the relatively low standard of proof required. It referred to the relevant authorities. In respect of the primary facts, though the Board did not accept the Applicant’s evidence in full, it proceeded to assess her risk and her entitlement to non-refoulement protection on the basis that what she said was true. The Applicant could have no complaint about that. It was only on the basis of her evidence that the Board made the further finding that the risk of harm was not real. This was a reasonable inference to draw on the primary facts. This finding could not be criticized as unreasonable or irrational.

18. The Applicant disagreed with the Board’s finding about adequacy of state protection and viability of internal relocation. She said that the police are corrupt and would demand a bribe for processing her complaint. The Board had considered the Country of Origin Information and found as a fact that there was no indication that the Indonesian police or authorities were involved or sided with money lenders or the husband and that there was nothing to support that the Indonesian police or authorities were unwilling or incapable of providing reasonable and sufficient protection to the Applicant. Thus, state protection is available to prevent the risk and internal relocation is a viable option to avoid the risk.

19. The Applicant’s overall or general complaint is about the Board’s finding of the low risk of harm and availability of state protection and internal relocation. These grounds are finding of facts by the Board.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[8]. Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.”

APPEAL TO THIS COURT

9.On 12 May 2021, the applicant filed her Notice of Appeal to this Court against the Judge’s decision.  She did not advance any ground of appeal except for saying that “I want to challenge the decision”.

10.As it was noted that the Notice of Appeal did not contain any proper grounds of appeal, pursuant to the direction of the Court dated 24 June 2021, the applicant filed her Supplementary Notice of Appeal on 6 July 2021 in which the applicant merely repeated her story that she and her son were under the threat of her abusive ex-husband, and her ex-husband had threatened to kill her upon her return to Indonesia.

LEGAL PRINCIPLES

11.In assessing the merits 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 on appeal, which operates as a re-hearing, 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 the 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.  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 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

12.The applicant has not in her Notice of Appeal or Supplementary Notice of Appeal raised any ground of appeal against the Judge’s decision or identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.

13.Regarding her claimed fear of harm by her ex-husband, the Board duly considered her evidence, including her admission to the Board that she had not received any threat from her ex-husband for many years.  The Board found that there was no evidence to suggest she would face any real risk of harm upon her return to Indonesia and her claimed fear was not genuine.  It was open for the Board to reach its findings and conclusions.  The applicant has failed to pinpoint any error in the Board’s decision.

14.Having considered the materials before us, we are satisfied that the Judge’s observations are fully justified.  We are also satisfied that the Judge reviewed the Board’s decision with vigorous examination and anxious scrutiny, and was right to refuse her leave application.

ORDER

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

The applicant, acting in person