RE RUFINA MARIA

CACV 354/2020

[2021] HKCA 178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 354 OF 2020

(ON APPEAL FROM HCAL 2436/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 28 July 2020, Deputy High Court Judge KW Lung (“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 5 October 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 9 March 2018 rejecting the applicant’s non-refoulement claim.

2.  On 11 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indonesian national.  She was previously employed as a domestic helper in Hong Kong from 2002 to 30 September 2015, after which she left Hong Kong on 13 October 2015.  The applicant then came back to Hong Kong on 26 December 2016 and was permitted to stay as a visitor until 25 January 2017. She did not leave Hong Kong and instead surrendered to the Immigration Department on 26 January 2017.  She lodged a non-refoulement claim on 10 February 2017. 

4.  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 due to the debt she owed.  The factual background was succinctly summarized by the Judge at [5] of the Form CALL-1 ([2020] HKCFI 1728).

5.  By notice of decision dated 9 March 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 3 July 2018, during which the applicant was interviewed by the Board.  The Board found that the applicant was not telling the truth regarding the alleged threats from her creditor, and that her evidence in that aspect was vague and unbelievable.  The Board also found that in any event that there was no real risk of harm, or that the risk of harm was low, due to the low intensity and frequency of the alleged threats.  The Board considered that, if necessary, internal relocation was viable.  Thus the Board dismissed the applicant’s appeal on 5 October 2018 on all the applicable grounds.

Decision of the court below

7.  On 1 November 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In her affirmation in support of her Form 86, she stated that she was afraid to return to her country, that her creditor would kill her, and that she wanted to stay in Hong Kong.

8.  Following a hearing on 2 October 2019 at which the applicant attended in person before the Judge, on 28 July 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [13] – [16] of the Form CALL-1 ([2020] HKCFI 1728, HCAL 2436/2018) as follows:

“ 13.     The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.

14.     She said that she did not understand the Board’s Decision. I therefore explained the Board’s findings in paragraph 10 above to her and asked her if she had any comments on them. She said that she had no comments.

15.     In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.     (1) … …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 (and the Director). 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.’

16.     The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

Appeal to this Court

9.  On 11 August 2020, the applicant filed her Notice of Appeal against the Judge’s decision.  Her ground of appeal was that the Board disregarded her dangerous situation.

10.  On the same day that she filed her Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

11.  The applicant lodged her written submissions on appeal on 14 January 2021.  In those submissions the applicant argued that there was procedural unfairness due to a lack of legal representation and language assistance before the Board or the Judge.

12.  In particular, the applicant submitted that though the Judge explained the Board’s decision to her, she was unable to understand legal jargon and could not elaborate the Board’s errors to the Judge without legal representation.  Thus, she argued that her appeal has been hindered by a lack of legal and language assistance. She contended that the Judge failed to consider the significance and unfairness resulting from the lack of language assistance.

13.  The applicant also submitted that it was unfair for the Board to disbelieve her when the Director did not make an adverse finding as to her credibility.

Legal principles

14.  In assessing the merit of the appeal, the Court has adopted the following principles 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]:

(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 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 (and the Director).  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.  And

(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.  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.  As stated by the Judge, he had invited the applicant to comment on the Board’s decision after it had been explained to her. She did not complain about any specific aspect of the Board’s decision.  She did not advance the argument that it was unfair for the Board to disbelieve her.

16.  Such argument has no merit. The Board’s process is by way of rehearing, and the Board was not bound by the Director’s finding.  The fact that the Board made its own assessment after hearing the applicant is not a reason for holding that the process was unfair. 

17.  In order for the applicant to succeed on an argument that inadequate legal and language assistance resulted in procedural unfairness, she at least had to raise specific aspects with regard to the Board’s reasons which had occasioned unfairness in the processing of her case.  The applicant has not raised anything in this regard and her contention is therefore untenable.

18.  The applicant was legally represented on her claim before the Director.  As the Board’s decision was based on its assessment of the applicant’s oral evidence at the Board hearing (where interpreter service was provided) compared with her documentary evidence (which she previously presented to the Director with legal assistance), there is no basis for holding that the process was unfair.

19.  It has repeatedly been held that the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403. 

20.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

21.  For these reasons, this appeal is dismissed.