Re Marina

CACV 140/2021

[2021] HKCA 1402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 140 OF 2021

(ON APPEAL FROM HCAL NO. 841 OF 2018)

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Before : Hon Cheung and Chow JJA in Court

Date of Judgment : 27 September 2021

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J U D G M E N T

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

I. The appeal

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 19 March 2021.

II. Background

2.The applicant is a national of Indonesia. She last entered Hong Kong in February 2007 as a visitor and overstayed after the permission to stay expired. She then raised a non-refoulement claim in November 2010 on the basis that if she was to return home she would be harmed or killed by the creditor of her grandfather or her father over their debts. After her torture claim was rejected, she then sought non-refoulement protection on the same basis.

3.The details of the applicant’s claim have been summarized by the Deputy Judge at [2]-[3] of the CALL-1 Form.

III. The Director’s Decision

4.The Director of Immigration (‘the Director’) decided against the applicant’s claim on 13 July 2017. The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as her other statutory and convention rights against persecution not including torture.

IV. The Board’s Decision

5.The applicant appealed against the Director’s Decision to the Board by way of Notice of Petition. After a hearing held on 9 February 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 4 April 2018.

6.The Board found that the applicant was not a witness of truth, and that she has fabricated her claims in relation to a debt she has ‘inherited’ from her father or grandfather or both. Based on her gaps, inconsistencies, and other problems with her evidence, and taking into account the relevant country of origin information, the Board rejected the applicant’s claims, both individually and cumulatively in its entirety.

V. Decisions of the Judge

7.The applicant filed a Form 86 with a supporting affirmation. She made a variety of complaints including state acquiescence, the fact of torture that had happened, the Director using only country of origin information which suited his preconceived conclusion, failure to maintain a high standard of fairness, failure to make sufficient enquiry, failure to give the applicant a chance to arrange evidence.

8.The Deputy Judge on 19 March 2021 held that the grounds recited appeared to be copied from other proforma commonly used in similar applications and are mostly irrelevant and are broad and vague assertions without any particulars or specifics. There was no error of law or irrationality or procedural unfairness.

VI. Grounds of appeal

9.The applicant in her notice of appeal stated the following :

‘ And further take notice that the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.’

10.In the applicant’s supporting affirmation, she stated, amongst other things, that she had ‘a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review’. She asked the Court to allow her appeal.

11.The contents of the notice of appeal and supporting affirmation contain bare allegations without specifics or elaboration.

12.In the applicant’s written submissions, she recited case authorities that are frequently used in general non-refoulement claims and statutory reference without detailing how those principles related to her case.

VII. Our view

13.We will repeat the approach of this Court in dealing with cases of this nature :

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 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 (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 their decisions.

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. In the determination for 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 a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant. If no viable ground is put forward to reverse the Judge, the appeal should be dismissed. It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.In our view, there is no merit in the applicant’s appeal. The Deputy Judge had provided his reasons of refusal in his decision.

15.We see no error in the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person