YATINAH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 70/2021

[2021] HKCA 1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 70 OF 2021

(ON APPEAL FROM HCAL NO 2297 OF 2018)

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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 11 February 2021, DHCJ C P Pang (“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 19 October 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 26 April 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 22 February 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 have proceeded to consider the appeal on paper without an oral hearing.

Background

3.  The applicant is a national of Indonesia. She first arrived in Hong Kong on 12 February 2011 to take up employment as a domestic helper.  Her last contract was prematurely terminated on 9 March 2013. She did not depart and overstayed since 21 May 2013.  On 6 August 2013, she was arrested by the police and subsequently lodged her non-refoulement claim on the basis that if refouled, she would be seriously harmed and forced to become a prostitute by her father’s creditor Gan.  The factual background of this case was succinctly summarized by the Judge in [3] of the Form CALL-1 ([2021] HKCFI 294).

4.  By a Notice of Decision dated 26 April 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.

5.  The applicant appealed the Director’s decision to the Board.  She attended an oral hearing on 16 April 2018 and by its decision dated 19 October 2018, the Board dismissed the appeal.  For the reasons set out in [78] to [93] of the Board’s decision, it was found that the applicant’s evidence of the loan taken out by her father was inconsistent and illogical, and her evidence of forced prostitution lacked coherence, and her evidence was rejected in its entirety.  In any event, there was no evidence suggesting that any alleged ill-treatment was connected with a state agent [125] and in any event, there is reasonable state protection [94] – [97] and internal relocation is a viable option [125] – [128].   For the aforesaid reasons, the applicant’s non-refoulement claim failed on all applicable grounds.

Decision of the court below

6.  On 22 October 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision.  In her Form 86, she did not set out any grounds.  In her supporting affirmation, she said she did not want to go back to her country as she was afraid that Gan would harm her or force her to work as a prostitute because she cannot repay him.

7.  The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  By his decision dated 11 February 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [13] – [23] of the Form CALL-1 as follows:

“13. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

14. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

15. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found her to be an incredible witness. The Board rejected her account of primary facts based on the major inconsistencies and contradictions in her evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds. Moreover, the Board found there is reasonable state protection to her and internal relocation is a viable option for her.

16. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

17. The applicant stated no grounds of the judicial review in Form 86. She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. I do not find any reasonably arguable ground to challenge the findings of the Board.

18. The applicant delayed in lodging the claim for protection after she came to Hong Kong and only lodged her claim after she overstayed and was arrested. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. It could be taken into account as damaging the applicant’s credibility and adversely affected the credibility of the claim.

19. There is no valid reason why her father’s creditor would still wish to pursue her after so many years.

20. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

21. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

22. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

23. 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, irrational findings, or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.”

Appeal to this Court

8.  On 22 February 2021, the applicant filed her Notice of Appeal, reiterating only her fear of harm to her and her daughter from the moneylender. 

9.  In compliance with the Court’s directions of 15 April 2021, the applicant lodged her written submissions on 21 April 2021.  She merely repeated the grounds of appeal verbatim as set out in her Notice of Appeal.  

Legal principles

10.  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

11.  The applicant did not in her Notice of Appeal and written submissions provide any ground of appeal against the Judge’s decision or identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.  She merely reiterated factual matters which the Board has found do not entitle her to protection.

12.  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

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