Re Winarti Saidjan

CACV 9/2022

[2022] HKCA 746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 9 OF 2022

(ON APPEAL FROM HCAL 2744 OF 2018)

________________________

________________________

Before:  Hon Kwan VP and Lisa Wong J in Court

Date of Hearing:  17 May 2022

Date of Judgment:  27 May 2022

_________________

J U D G M E N T

_________________

Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”) on 23 December 2021 refusing to grant leave for judicial review (“Judge’s Decision”). The intended application for judicial review sought to quash the decisions of the Torture Claims Appeal Board (“Board”) given on 30 October 2015 and 22 November 2018 (“Board’s 1^st Decision” and “Board’s 2^nd Decision” respectively and “Board’s Decisions” collectively), which dismissed the applicant’s appeals against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 18 February 2015 and a notice of further decision dated 17 February 2017 (“Director’s 1^st Decision” and “Director’s 2^nd Decision” respectively and “Director’s Decisions” collectively).

Basis and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of Indonesia, is a fear of being harmed or even killed by her ex-husband (“Tumirin”) if she returns to Indonesia.

3.The circumstances giving rise to such alleged fear have been set out in paragraph 6 of the Director’s 1^st Decision, paragraphs 3 to 12 of the Board’s 1^st Decision and [6] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 3816.

4.Briefly:

(1)  The applicant and Tumirin entered into an arranged marriage in 1990.

(2)  In 1991, Tumirin left home, without telling the applicant where he was going or for how long he would be gone. He did not reappear until October 1993.

(3)  During Tumirin’s absence, the applicant had an affair with a fellow villager (“Agus”) and was pregnant with his child. Agus fled after hearing of Tumirin’s return.

(4)  Upon the applicant’s confession of the affair, Turimin had twice attacked her in October 1993, causing injuries for the treatment of which the applicant was hospitalised for 2 days.

(5)  At Tumirin’s request, the village head conducted a trial of the applicant and ordered the permanent expulsion of the applicant from their village.

(6)  Upon Tumirin’s complaint, the police arrested the applicant and detained her for 1 night for the offence of having an illicit affair. While she was in the police station, the applicant reported Tumirin’s violence against her but the police did not take action.

(7)  Tumirin and a police officer also tried to pressurise the applicant to have an abortion.

(8)  The applicant escaped to Krandekan but Tumirin located her there several months later. He would come around to insult the applicant. Sometimes, he would beat her up. While he could abuse the applicant, Tumirin did not harm her son.

(9)  In November 1994, the applicant went to, and stayed in, another district of Jakarta for 3 months to receive training to be a domestic helper. Those 3 months were uneventful.

(10)  In early 1995, while the applicant was working in Singapore, she learned from a person at the employment agency that Tumirin often went to Krandekan to ascertain her whereabouts and that Tumirin had switched the target of his abuse to her son as the applicant was not around.

(11)  Her son told the applicant that Tumirin threatened to kill, and cast black magic on, the applicant if she returns to Indonesia. The applicant had heard from others that Tumirin’s uncle was well known for practising black magic.

(12)  In January 1997, the applicant broke her contract in Singapore and returned to Krandekan whereupon Tumirin physically attacked her again. He repeated the threats to kill, and use black magic on, her.

(13)  The applicant then sought safety in another part of Jakarta but was located by Tumirin who tried, but failed, to take her away.

(14)  Thereafter, the applicant managed to stay safe until mid 1998.

(15)  The applicant’s last contact with her son was back in around 2012. He told the applicant that Tumirin had threatened him at the market place. He also told the applicant that he had heard that Tumirin had legally divorced her.

Entry into Hong Kong and lodgment of NRF Claim

5.The applicant came to Hong Kong to work as a domestic helper in 1998. She did not leave Hong Kong after her employment was terminated prematurely on 23 March 2002. She was arrested by the police on 11 September 2009. The NRF Claim made by written signification was received by the Immigration Department on 19 June 2013. She completed a Non-Refoulement Claim Form dated 30 September 2014 (“NCF”) and attended a screening interview with the Director’s representative(s) on 11 February 2015 (“Interview”). The applicant was then legally advised and represented by the Duty Lawyer Service.

Director’s Decisions

6.After considering the information provided by the applicant in the NCF and at the Interview, by the Director’s 1^st Decision, the NRF Claim was found to be unsubstantiated under the following 3 applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2] and “BOR 3” risk[3]. By the Director’s 2^nd Decision, the NRF Claim was found to be unsubstantiated for “BOR 2” risk[4].

7.To sum up, the Director found:

(1)  The future risk of harm was low. The applicant had by then left Indonesia for 16 years. And Tumirin had already formally divorced her. It is unlikely that Tumirin would still have any interest in harming her. The evidence does not support the allegation that Tumirin or his uncle could use black magic to harm or locate the applicant.

(2)  Even if Tumirin should still want to harm the applicant, it is unlikely that he would exhaust a lot of resources to locate her throughout the country.

(3)  The applicant’s problem with Tumirin is domestic in nature. The applicant is not a target of the Indonesian government. There is also no substantial ground to believe that further action, if any, by Tumirin will be inflicted by or at the instigation of or with the consent or acquiescence of a public official or person acting in an official capacity.

(4)  The country of origin information (“COI”) indicates that there are government and non-government agencies which provide support to women who are subject to domestic violence in Indonesia.

(5)  The mishap of individual officer or police station could not represent the whole Indonesian government. Reasonable state protection and internal relocation alternatives are available to the applicant in Indonesia to lower or negate the perceived risk, if any.

Appeals to Board and Board’s Decisions

8.The applicant appealed against both of the Director’s Decisions to the Board.

9.The Board accepted the factual basis of the NRF Claim without reservation[5] and decided that it is appropriate to deal with the appeal against the Director’s 1^st Decision on paper in reliance upon the principle laid down in ST v Betty Kwan [2014] 4 HKLRD 277.

10.By the Board’s 1^st Decision, the Board considered the NRF Claim based on torture risk, persecution risk and “BOR 3” risk and dismissed the applicant’s appeal against the Director’s 1^st Decision for the following reasons. The incidents complained of happened in the 1990s before the criminalisation of domestic violence in Indonesia in 2004. The COI shows that the Indonesian government has taken steps for the protection of women, in particular, against sexual and domestic violence. The Board accepted that there may be a chance that Tumirin will act violently towards the applicant if they meet in Indonesia but assessed that it is unlikely that any pain or suffering inflicted on her will be severe or that it will be inflicted with the active or passive consent or acquiescence of any public official or person acting in an official capacity. Even if the Board was wrong in its assessment of the risk of harm, reasonable state protection and internal relocation options are available to the applicant in Indonesia.

11.The Board considered that the determination of the appeal against the Director’s 2^nd Decision does not require a hearing as the applicant did not put forward any new facts or materials in support. In dismissing such appeal, the Board found that the applicant had failed to show that Tumirin will kill her if she is refouled to Indonesia and the risk, if any, may be avoided by internal relocation.

Application for leave for judicial review and Judge’s Decision

12.By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2744/2018 on 3 December 2018, the applicant applied for judicial review of the Board’s Decisions without stating any proposed ground for judicial review. The supporting affirmation filed on the same day simply exhibited the Board’s Decisions.

13.The application for leave to apply for judicial review of the Board’s 1^st Decision was made out of time. Nonetheless, the Judge proceeded to consider both decisions of the Board “since the Board had to rely upon the facts in the first decision for its determination of the second Decision” and it is therefore “only reasonable to consider the first and the second Decisions together”.

14.The applicant did not request for an oral hearing. After considering the material before him, the Judge refused leave on paper in the absence of any error of law, procedural unfairness or irrationality in the Board’s Decisions.

Appeal to Court of Appeal - grounds of appeal and submissions

15.By the notice of appeal filed herein on 5 January 2022, the applicant appealed against the refusal of leave for judicial review, without stating any ground of appeal.

16.In her written submission dated 7 February 2022, the applicant reiterated the problems she faces in Indonesia and that:

(1)  the rejection of her claim is a big error;

(2)  the lawyer did not help her;

(3)  the second adjudicator did not give her enough time; and

(4)  the High Court did not find these problems.

17.The appeal was heard on 17 May 2022. The applicant appeared in person and had nothing to add in further support of the appeal.

Discussion

18.In view of the manner in which the applicant has conducted the application before the Judge and the appeal before us, we can dispose of this matter shortly.

19.First, the role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.

20.Second, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere if and only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.

21.See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

22.The applicant had not in the Form 86 or the supporting affirmation identified any error of law, procedural unfairness or irrationality on the part of the Board in dismissing her appeals against the Director’s Decisions.

23.That being the case, the applicant’s proposed judicial review was hopeless and leave was rightly refused. In such circumstance, we cannot see how it can be contended that the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. The applicant certainly did not in the notice of appeal or written submission before us identify any such flaws upon which the Court of Appeal can disturb the Judge’s Decision.

24.With regard to the matters asserted by the applicant in her written submission, first, none of them (save for the last allegation which post-dates the Judge’s Decision) had been raised before the Judge. Second, they are too vague and lacking in particulars to merit any serious consideration.

25.In any event, we have anxiously examined the Board’s Decisions and the Judge’s Decision and are satisfied that they are all in order.

Disposition

26.For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.

The applicant, unrepresented, appeared in person