Winarsih v. Torture Claims Appeal Board and Another

CACV 164/2022

[2022] HKCA 1813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 164 OF 2022

(ON APPEAL FROM HCAL NO 2053 OF 2018)

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Before:  Hon G Lam JA and Andrew Chan J in Court

Date of Judgment:  16 December 2022

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 22 April 2022[1] refusing 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 (“Board”) dated 24 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 23 April 2018 rejecting the Applicant’s non-refoulement claim.

Background

2.The applicant is an Indonesian national born in 1976. She last arrived in Hong Kong on 12 December 2014 and was employed as a domestic helper until 18 February 2015, when her employment contract was terminated. She was subsequently permitted to remain as a visitor until 2 April 2015, but she did not depart, and had overstayed. On 2 September 2016 she surrendered herself to the Immigration Department, and raised her non-refoulement claim on 12 and 26 September 2016.

3.The applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed or even killed by her creditor, for failure to repay the remainder of a loan. She claimed that the creditor and his gang had repeatedly threatened and violently assaulted the applicant and her mother at their home in Indonesia when demanding repayment. The factual background was set out at paragraphs 7.1 to 7.33 of the Director’s decision.

4.By notice of decision dated 23 April 2018, the Director assessed the applicant’s claim on all the applicable grounds and determined it against her. Those grounds are BOR 3 risk[2], persecution risk[3], torture risk[4] and BOR 2 risk[5].

5.The applicant appealed to the Board against the Director’s decision. She was not legally represented at the Board proceedings. An oral hearing was held on 16 July 2018, during which she answered questions from the Board.

6.At paragraphs 26 to 34 of its decision, the Board found that the applicant was not a credible witness, due to inconsistencies between the information she provided to the Director and her oral evidence at the Board hearing. Thus the Board noted that the applicant was inconsistent on the agreed rate of interest on the loan, and on what had happened at the second visit of the creditor and his gang in March 2013, including whether her mother was assaulted, whether the creditor threatened to occupy her home and evict her family, and whether her father was present at the incident. The Board also noted that the applicant told the Director that her father was hospitalized due to physical injuries suffered from a traffic accident and that she had to borrow money immediately, whereas at the Board hearing she stated that her father had a stroke and, after being paralysed at home for two years, had to be hospitalized as his conditions deteriorated, and that the loan was taken out at that point. These inconsistencies were put to the applicant during the Board hearing, but she replied that she could not offer any explanation.

7.In the end, the Board did not find the applicant to be a credible witness and rejected her evidence. The Board also found that effective state protection was available and that internal relocation was a viable option for the applicant who should have no difficulty in securing a job in other parts of Indonesia. The Board concluded that the applicant was unable to establish a real likelihood of risk pertaining to any of the applicable grounds and therefore dismissed her appeal in its decision dated 24 September 2018.

Decision of the court below

8.On 27 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her Form 86 and supporting affirmation, however, she did not raise any grounds for judicial review.

9.Following consideration of the documents only, on 22 April 2022 the Judge refused to grant leave to apply for judicial review. His reasons were set out at [10] – [12] of the Form CALL-1 as follows:

“ 10. 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.

11. In the Applicant’s case, 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 her claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. 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 26 April 2022, the applicant filed her Notice of Appeal in this court against the Judge’s decision. Her grounds of appeal are essentially that the lack of legal and language assistance resulted in procedural unfairness. She pointed out that neither she nor her friend who assisted her in preparing her Form 86 understood legal jargon and that without legal assistance, she could not identify legal errors in the Director’s or Board’s decisions. The applicant also pointed out that her friend is not a professional, and that she could not always find help with interpretation or translation. Further, the applicant requested that the judgment be translated or read to her.

11.Despite the Registrar of Civil Appeals’ directions dated 13 June 2022, the applicant did not lodge any skeleton argument for her appeal. As a consequence, pursuant to those directions, the original hearing date for the appeal was vacated for it to be disposed of on the papers.

Discussion

12.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non‑refoulement cases: see 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]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, 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 the appeal were a fresh application for judicial review.

13.As mentioned above, the Board rejected the applicant’s claim primarily due to its adverse view of her credibility. The Board found that the applicant was not a credible witness, due to the inconsistencies between her narrative before the Director and her oral evidence at the Board hearing, in particular as regards the reason for and timing of her father’s hospitalization which precipitated a need to borrow money. It seems to us that the matters in respect of which the Board found the applicant to have been inconsistent were not insubstantial matters. In particular, the reason for her to borrow the loan in question was a fundamental fact on which she not only gave conflicting stories but was unable to explain why she had given inconsistent answers. The Board was entitled to find her evidence so unsatisfactory as to warrant no credence. That was sufficient for the Board to dismiss the applicant’s appeal, leaving aside the question of state protection and internal relocation.

14.As mentioned above, the Board was the decision-maker on the question of credibility and on the facts. The decision it had come to was open to it on the evidence it received and on its reasoning. The court upon judicial review would have no power to impugn such decision unless it was established that the decision was vitiated by public law errors. No such error had been demonstrated by the applicant. Nor can we detect any in the available materials.

15.Further, the applicant had wholly failed to establish any grounds of appeal to show how the Judge’s decision was in error.

16.For the above reasons, the appeal is dismissed.

The Applicant, unrepresented, acting in person