RE RESTU DWI AMBARWULAN

CACV280/2018

[22018] HKCA 774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 280 OF 2018

(ON APPEAL FROM HCAL 590/2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock given on 27 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 25 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 26 November 2015 and 21 February 2017 rejecting the applicant’s non-refoulement claim. The Director of Immigration was also named as a proposed respondent.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 17 September 2012 to work as a foreign domestic helper.  After her contract was terminated prematurely, she was permitted to remain until 22 February 2013.  She overstayed and was arrested by the police on 4 September 2013. She lodged a non-refoulement claim on 3 March 2014.

3.  The applicant’s claim was based on threats from debt collectors and her ex-husband. The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 26 November 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 21 February 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 23 March 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 25 August 2017 (“Board’s Decision”).

7.  At [55(j)] of the Board’s Decision, the Board found that the applicant’s past experience did not meet a minimum level of severity.  She failed to show that there is a reasonable possibility that upon her return to Indonesia she faces a risk of serious harm.  The Board was also satisfied at [67] that state protection would be available for the applicant and at [69] that internal relocation would be viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 7 September 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 7 September 2017, the applicant advanced various grounds for judicial review against the Board and the Director which are summarised below:

(1)   failure to clarify with the applicant issues concerning her credibility;

(2)   failure to conduct sufficient inquiry into and critically analyse the relevant country of origin information (COI);

(3)   cherry-picking COI;

(4)   failure to consider the concept of extended state acquiescence;

(5)   procedural impropriety – failure to assess her claim properly under the applicable grounds; and

(6)   misdirection in law – failure to consider the fact, erroneously concluded that the claim is private and personal in nature.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at 10 to 17 of the CALL-1 Form:

“10. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

11. The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise submits both decision-makers failed to properly consider Country of Origin information and they cherry picked at that information. They also failed to consider the concept of extended state acquiescence. They failed to properly consider the applicable grounds and apply her evidence to them. The adjudicator of the TCAB is accused of failing to maintain a high standard of fairness and he highlighted her inconsistencies and exaggerations without giving her an opportunity to clarify or explain any discrepancies.

12. Leaving aside my view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only, the applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here. Leaving aside that view, even if this application applied to both decision makers, there are no merits in the grounds against either.

13. There are no particulars put forward in his grounds against either the adjudicator or the Director. The applicant would have been legally represented before the Director. His legal representative would have known that the Country of Origin information was relevant. Because of the lack of particulars, I find no merit in the accusation that the decision-makers cherry picked at information to the detriment of the applicant.

14. The decision-makers are criticised for failing to consider the concept of extended State acquiescence. However, the applicant did not rely on this. The decision-makers did not need to consider this concept in any depth. In any event, the applicant made no report to the police or any authority. This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.

15. The adjudicator is criticised for highlighting inconsistencies without giving the applicant an opportunity to explain however, the adjudicator does not highlight inconsistencies nor does he accuse her of exaggeration. This ground is misleading because the adjudicator applies the law to the applicant’s own facts on the basis she is telling the truth.

16. After considering the applicant’s grounds, I do not find any that shows there was an error of law by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

17. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 3 July 2018 the applicant advanced the following grounds of appeal:

(1)   the decision makers failed to properly consider her fears and to conduct sufficient enquiry into the relevant COI;

(2)   failure to consider the psychological impact on the applicant from the threat and abusive language;

(3)   failure to properly consider paragraph 2 of the UN Committees General Comment No 2;

(4)   insufficient basis to conclude that she will not be subject to torture and CIDTP upon her return.

12.  In her skeleton submissions dated 11 September 2018, the applicant repeated the grounds in the notice of appeal.  She added that that the Board and the Director had failed to consider the death threats towards her and her family. She has a baby born in Hong Kong and the baby’s life will also be at risk upon her return to Indonesia.

13.  The applicant agreed by a letter dated 3 July 2018 that the appeal can be heard by two judges.  We heard the appeal on 24 October 2018.

Discussion

14.  The grounds based on UN Committees General Comment No 2 and psychological impact were never canvassed at the Court of First Instance and are raised for the first time well outside the time limit for judicial review.  The applicant failed to provide any reason why she should be allowed to rely on this ground.  We therefore would not permit these new grounds to be raised at this stage. (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).

15.  As for the ground based on the failure to conduct sufficient enquiry into COI by the Board and the Director, this ground is not directed at any alleged error by the judge.  The judge had already dealt adequately with the grounds based on COI at [13] of the CALL-1 Form.  This ground is without merit.

16.  Regarding the ground based on insufficient basis to make a conclusion on CIDTP and torture risks, the applicant did not indicate whether this ground is directed towards the judge’s decision, the Board’s Decision or any of the Director’s decisions.  In any event, this ground lacks particulars and is bound to fail.

17.  Lastly, neither the threats to her family nor the threats to her baby are viable grounds of appeal.  No evidence has been adduced in support.  In any event, we note that the Board has already concluded at [55(j)] of its Decision that there is not a reasonable possibility that the alleged risks will materialise.

18.  There is no merit in the appeal and we dismiss the appeal accordingly.