Nurina-agustin Alias Agustin Nurina Alias Nurina Agustin v. Torture Claims Appeal Board

CACV 258/2021

[2022] HKCA 723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 258 OF 2021

(ON APPEAL FROM HCAL NO 1499 OF 2018)

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BETWEEN

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Before:  Hon Yuen and Chow JJA in Court

Date of Judgment:  27 May 2022

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J U D G M E N T

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

Introduction

1.On 7 May 2021, DHCJ Bruno Chan (“the Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 13 July 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 27 December 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.On 18 May 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, she lodged a letter with the Court indicating her consent to have this appeal disposed of on paper without an oral hearing.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

3.Pursuant to the directions of Registrar of Civil Appeals of 8 July 2021, the applicant should lodge her written submissions on or before 22 July 2021.  She failed to do so and only lodged the same on 10 August 2021.  She did not provide any reason for the delay.

4.The Registrar further directed that in case the applicant fails to lodge her written submissions as directed, she will be deemed to have abandoned her right to rely on written submissions, and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials.  As such, her written submissions will not be considered by this Court.

Background

5.The applicant is a national of Indonesia.  She last arrived in Hong Kong on 21 April 2015 with permission to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 21 August 2015, she did not depart and instead overstayed.  She surrendered to the Immigration Department on 15 December 2015, and lodged a non-refoulement claim by way of written representation on 28 February 2017 alleging that if refouled, she would be harmed or even killed by her former husband Kusnan (“K”)  for refusing to resume their relationship and/or by his creditors for failing to repay his loans.  The factual background of this case was succinctly summarized by the Judge in [2] – [6] of the Form CALL-1 ([2021] HKCFI 1277).

6.By a Notice of Decision dated 27 December 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.

7.The applicant appealed the Director’s decision to the Board.  She attended an oral hearing on 15 May 2018 and by its decision dated 13 July 2018, the Board dismissed the appeal and confirmed the Director’s decision.  At the hearing, the applicant did not advance the case that she received threats from the loan sharks owing to K’s debts (see in particular, para 39 of the Board’s decision), and on that evidence the Board found that she would not face any real risk of harm from the loan sharks.[5] The Board accepted that the applicant, during the course of marriage with K from 2004 to 2006, was physically abused by K and that she had a genuine subjective fear of K.  However, since the applicant did not have any direct contact with K since their divorce in 2012 and there is no reliable evidence to suggest K would still have any adverse interest in her, the Board did not consider that the applicant would face any real risk of harm upon her return to Indonesia; accordingly, her non-refoulement claim was rejected on all applicable grounds.[6]

Decision of the court below

8.On 30 July 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form.  In her supporting affirmation, she stated that the Board failed to take into account the following matters when dismissing her appeal:

(1)  She was not educated.

(2)  In the absence of proof of her case, the Board cannot infer that she has no case.

(3)  The decision was made under assumption.  

9.The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [12] – [16] of the JR Decision:

“12. These are however all just broad, vague or irrelevant assertions of the Applicant without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision made on assumption. It is clear that the only issue before the Board, as rightly pointed out by the Adjudicator, was whether there are substantial grounds for believing that the Applicant would be in danger of harm from her former husband upon her return to Indonesia, and that the burden of proof rests on the Applicant to prove that there are: Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187, para. 51.

13. Given the basis even on her own case and the evidence adduced at her appeal hearing before the Board, and in applying high standards of fairness the Adjudicator did properly examine those evidence as well as all other materials before the Board including the relevant COI on the availability of state/police protection before arriving at the conclusion, which the Adjudicator was entitled to in the circumstances, that there are no substantial grounds for believing that the Indonesian authorities would not provide protection to the Applicant or would fail to prevent such risk of harm from her former husband to her upon her return to Indonesia. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any of the Applicant’s complaints reasonably arguable for her intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  In the premises and 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 or irrationality or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Appeal to this Court

10.On 18 May 2021, the applicant filed her Notice of Appeal against the Judge’s decision on the following grounds:

“The High Court Judge Mr Bruno Chan refused my leave to apply for judicial review. He could not show any mejor (sic)  cause to refuse. I want to challenge his judgment.”

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 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 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 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 ground of appeal set out in the Notice of Appeal is a vague and general assertion without particulars or elaboration, and it is not a valid ground of appeal: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

13.In the present case, the Board had rejected the applicant’s claim as there is no reliable evidence to suggest that K would still have any further adverse interest in the applicant since their divorce in 2012, and the claim did not suggest any state involvement or acquiescence.  In any event, there would be reasonable state protection and therefore it was not satisfied that there is any real risk of harm upon her return to Indonesia.  The Board was entitled to make the findings as it did and the Judge rightly found there was no valid public law ground to intervene.

14.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

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

The applicant, unrepresented, acting in person