Resti Andriyani v. Torture Claims Appeal Board and Another

CACV 547/2021

[2022] HKCA 1822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 547 OF 2021

(ON APPEAL FROM HCAL NO 756 OF 2021)

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Before:  Hon Yuen and Au JJA in Court

Date of Written Submissions:  17 December 2021

Date of Judgment:  14 December 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 23 November 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 23 April 2021. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 24 August 2020 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.On 6 December 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, a letter was lodged with the Court expressing the applicant’s consent to have this appeal disposed of on paper without an oral hearing.

3.In compliance with the directions given by the Registrar of Civil Appeals on 6 December 2021, the applicant lodged written submissions on 17 December 2021.

4.As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

5.The applicant is a national of Indonesia, now 31 years old. The Board found that the applicant is a transgender man and a lesbian [43], apparently transitioning in a process of self-injection of hormones [37]. After having previously worked as a foreign domestic helper in Hong Kong, she last arrived on 12 March 2019 with permission to remain as a visitor up to 11 April 2019. She overstayed and was arrested by police on 9 March 2020. She was referred to the Immigration Department for investigation and on 10 March 2020, she raised a non-refoulement claim alleging that if refouled, she would be harmed or even killed by her stepfather (“H”) for identifying as a transgender man. She further claimed that she would be discriminated or persecuted by the Muslim community in Indonesia. The factual background of this case was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2021] HKCFI 3515).

6.As mentioned earlier, in a Decision dated 24 August 2020, the Director having 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], determined it against her.

7.The applicant appealed the Director’s decision to the Board. She attended an oral hearing on 28 January 2021, and by its decision dated 23 April 2021, the Board dismissed the appeal. The Board found that although there were aspects of her evidence which the Board did not believe, she was largely honest and the Board was prepared to give her the benefit of the doubt [16]. Accordingly, the Board assessed the claim on the basis of her account that she had once been sexually molested by H, and was later assaulted with a machete by H (the Board found not seriously [65]) after he saw her walking on the street with a girl. The applicant then left H’s home. As she has become financially independent since 2007, the Board found there is no evidence or reason to believe that after all these years, H would still have any adverse interest in her or have the ability or power to harm her [58] – [74]. The relevant country of origin information (“COI”) suggested that there is reasonable state protection as there is in force in Indonesia a comprehensive system of law to punish violence [83] – [87]. As for the applicant’s claimed fear of discrimination and persecution from the Muslim community on account of her transgender identity and sexual orientation, the Board found no evidence of any state instigation or acquiescence. The applicant admitted that during her stay in Indonesia, she did not encounter any discrimination [109]. Relevant COI showed the Indonesian government does not encourage discrimination against LGBTI[5] people and there is no law against LGBTI activities in Indonesia [51] – [55]. While there may be some social discrimination and restrictions against LGBTI people, they are not sufficiently severe in terms of intensity, duration or repetition to constitute persecution or any real risk of proscribed harm upon the applicant’s return to Indonesia [96] – [131]. For the aforesaid reasons, the Board rejected her non-refoulement claim on all applicable grounds.

Decision of the court below

8.On 25 May 2021, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision. In the Form 86, the grounds on which relief was sought was categorized by the Judge as follows:

(1)  The Director and the Board were wrong in their assessments and decisions in rejecting her non-refoulement claim.

(2)  Their decisions were not reasonable or fair as required by the Wednesbury test.

(3)  They failed to take into account her right to life and she should be protected from the risk of extra-judicial killings in her home country.

In her affirmation in support, the applicant said that she was “presently not in possession of any of my documents. I would be in position to submit rest of the documents upon my release”. However, she did not identify what those documents were, and how they would advance her case.

9.The applicant attended an oral hearing on 4 November 2021. It is clear from the Judge’s decision that at the hearing, the applicant did not refer to any documents she wished to submit, or ask for an adjournment to produce them. 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. Putting aside the fact that the Director’s decision is no longer susceptible to judicial review after the Applicant had brought her appeal to the Board (see Moshin Ali [2018] HKCA 549), these grounds are just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how did the Director or the Board err in the decisions, or in what way were the decisions wrong or unfair or unreasonable, or how would extra-judicial killings be relevant to her claim even on the basis of her own base. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

13. 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.

14. In the Applicant’s case, the Board rejected her claim for the very thorough and detailed analysis and reasoning set out in paragraphs 41 – 186 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim as well as with ample COI available before the Board which it did go through with careful detailed and proper consideration and assessment of those relevant to her claim, while it also correctly applied the relevant principles in its consideration of the Applicant’s claim of fear of persecution based on her gender identity and sexual orientation. As such and in the absence of any error of law 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 reasonably arguable basis to challenge the findings of the Board.

15. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia so as to avoid negate and minimize such risk, 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 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 6 December 2021, the applicant filed her Notice of Appeal and she advanced the following grounds:

(1)  It was evident that the Director has failed to appreciate or give the proper importance or weight to the presence of state acquiescence in her case and it led to an unfair outcome of rejecting her non-refoulement claim.

(2)  The Director, the Adjudicator and the Judge failed to take such argument into account, or the Director had failed to give sufficient weight to such argument before reaching his decision.

(3)  The Adjudicator failed to make sufficient enquiry before finalizing the determination. The Adjudicator stated that the applicant failed to provide any credible evidence to prove the elements of her claim.

(4)  The Adjudicator failed to give sufficient chance to her to arrange relevant evidence for her appeal. As she was detained at the Castle Peak Bay Immigration Centre, she was not given time to prepare her case properly.

(5)  The Director referred to COI that suited his pre-conceived conclusion. It showed the unfair attitude on the part of the Director and the decision should be void.

(6)  The applicant should be given an opportunity to plead her case properly given the gravity of the circumstances of her case.

11.In her written submissions, she stated that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and she quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 in support of her proposition. She submitted that the Adjudicator had acted in an unfair manner in dealing with her application without properly assessing her credibility. She further submitted that a decision of an administrative body exercising discretionary decision-making functions should be set aside if the resulting decision is “unreasonable”. Lastly, she referred to section 37ZT of the Immigration Ordinance (Cap. 115) which concerns late filing of notices of appeal to the Board. However, she did not explain or elaborate how the legal authorities and provisions would apply to and/or assist her case.

Legal principles

12.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

13.First, the ground that the applicant had not been given sufficient opportunity by the Board to arrange for evidence cannot be entertained. It was never raised before the Judge and no reason has been given for the omission.

14.Second, the other grounds of appeal are mainly against the Director’s and the Board’s decisions. The applicant has failed to provide any proper ground of appeal against the Judge’s decision or to identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.

15.It is clear from the Board’s very thorough decision that it rejected the applicant’s case as she had failed to establish that upon her return to Indonesia, she would face a real risk of persecution or any form of proscribed harm due to her transgender identity and sexual orientation. Even though the Board accepted the applicant’s case that she had been molested and assaulted by H, there has been no contact with H since 2007 and she has become independent. Thus, the Board did not find any risk of harm by H upon her return to Indonesia. Regarding her claimed fear that she will suffer discrimination and persecution from the Muslim community, after due consideration of the relevant COI, the Board found that while there may be some social discrimination against LGBTI people, it would not be sufficient to constitute persecution or torture, or pose 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 that there was no valid public law ground to intervene.

16.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

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

The applicant, unrepresented, acting in person