Re Yunanik

CACV 536/2020

[2021] HKCA 1419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 536 OF 2020

(ON APPEAL FROM HCAL 2914/2018)

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Before:  Hon Kwan VP, Barma JA and Lisa Wong J in Court

Date of Hearing:  20 September 2021

Date of Judgment:  29 September 2021

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J U D G M E N T

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

1.This is an appeal against the decision of Deputy High Court Judge KW Lung dated 30 July 2020, by which he refused to grant leave for the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement protection claim[1]. Although the applicant failed to lodge a Notice of Appeal within the time limit for doing so, Deputy High Court Judge Bruno Chan granted an extension of time for the applicant to appeal against the said decision[2] on 29 September 2020. Thereafter, the applicant filed a Notice of Appeal on 30 September 2020.

Background

2.The applicant is a national of Indonesia.  She is 32 years old.  She came to Hong Kong on 4 September 2014 to work as a domestic helper.  Her employment contract was prematurely terminated on 11 December 2014 and she subsequently overstayed.  She surrendered to the Immigration Department on 15 March 2016 and raised a non-refoulement claim on 28 June 2016. Her claim was based on her fear that she would be harmed or killed by her stepfather and his creditor if she returns to Indonesia because her stepfather had borrowed money from the creditor, a money lender, and was unable to reply the loan.  

The Director’s decision

3.By a Notice of Decision dated 28 March 2018, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6]. 

4.The Director noted that the applicant never met her stepfather or the creditor in person and had never been physically assaulted by either of them.  Taking into account the mode and intensity of the alleged verbal threats from them, the Director considered that they had no real intention to cause serious harm to the applicant or to kill her.  The Director further considered that the applicant’s problem is personal and private in nature and has nothing to do with her race, religion, nationality, membership of a particular social group or her political opinions.  Moreover, the Director held that the availability of state protection and internal relocation alternatives would further lower or negate the perceived risk.  

The Board’s decision

5.The applicant’s appeal against the Director’s decision was heard before the Board on 22 August 2018.  The Board considered the applicant’s evidence regarding the threats unbelievable as she was evasive when answering questions put to her, her account was vague and lacking in particulars and there were significant inconsistences and contradictions in her evidence.  The Board also decided that, even if assuming that the alleged matters were true, the level of risk of harm upon her return was low as indicated by the low intensity and frequency of the alleged threats.  Furthermore, there was no indication that the state of Indonesia was involved in, indifferent to or has provided any form of encouragement to her stepfather or the creditor in threatening or causing any harm to her.  The Board also found that the applicant could relocate to other places in Indonesia if it were necessary for her to avoid from her stepfather and the creditor.  The Board therefore dismissed her appeal on 7 December 2018.

The intended judicial review

6.The applicant filed a Form 86 and an affirmation on 19 December 2018 to seek leave to apply for judicial review against the decision of the Board.  The following were the main grounds of her intended challenge:

(1)  the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;

(2)  the contents of the hearing bundle were in English and she was unable to obtain interpreter service;

(3)  she was confused at the appeal hearing;

(4)  the Adjudicator was unfair and had not given greater care to a self-represented claimant;

(5)  the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

(6)  the Adjudicator had applied the incorrect standard of proof;

(7)  the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”);

(8)  the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

(9)  the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

(10)  the Adjudicator had not considered USHR 2010, USRF 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Indonesia” Autumn 2011, which are favourable to her case;

(11)  the Adjudicator failed to fulfil his obligation to obtain the requisite documents for his adjudication;

(12)  there was no screening for BOR 2 risk; and

(13)  the applicant was not legally represented or assisted before the Board.

The judge’s decision

7.The applicant appeared before DHCJ KW Lung at the hearing on 5 June 2019.  The judge found grounds (1)  to (4)  and (12)  untrue.  He also rejected grounds (5)  to (11)  as being just the applicant’s opinion without evidence in support.  The judge further rejected ground (13)  as it is well-established that an applicant does not have an absolute right to free legal representation at all stages of the proceedings and the applicant had already had the benefit of legal representation in presenting her case to the Director.  The judge concluded that the applicant failed to show that she has any reasonable chance of success in her proposed judicial review and dismissed the leave application on 30 July 2020.

Grounds of Appeal

8.In the Notice of Appeal filed on 30 September 2020, the applicant stated as her only ground of appeal that the Board disregarded her dangerous situation without advancing any specific complaint against the decision of the judge.

9.She made the following further submissions in her skeleton argument dated 23 August 2021:

(1)  as the loan shark is still looking for her, there is a genuine possibility that she would face a threat to her life if she were returned to her home country and she should be considered to be subject to BOR 2 risk;

(2)  since Indonesia is a communal society, people know each other very well and the loan shark would be able to track her down very easily.

Legal Principles

10.The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

11.In an appeal against 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 light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

12.The applicant’s grounds and submissions are all bare assertions without evidence in support.  In particular, she has failed to suggest, still less to demonstrate, that the judge made any errors of law or failed to take account of relevant matters placed before the court, or was otherwise plainly wrong.  Her written submissions all concern factual matters which are for the Board to decide, and disclose no public law error.  They disclose no viable grounds of appeal against the judge’s decision.

13.For the above reasons, the appeal is wholly devoid of merit and must be dismissed.

The applicant appeared in person