FATMAWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION AND ANOTHER

CACV 349/2019

[2019] HKCA 1364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 349 OF 2019

(ON APPEAL FROM HCAL NO. 1740 of 2018)

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JUDGMENT

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 18 July 2019 refusing to grant her leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 8 August 2018 and the decision of the Director of Immigration (“the Director”) dated 5 December 2016. 

2.  The applicant is an Indonesian national.  She came to Hong Kong on 22 December 2011 and was given permission to remain for employment as a domestic helper until 22 December 2013.  Her employment contract was prematurely terminated on 2 February 2012.  She did not depart and overstayed in Hong Kong since 17 February 2012.  She was arrested by the police on 17 April 2013 and was transferred to the Immigration Department for investigation.  On 13 March 2014, she lodged her non-refoulement claim by way of written representation. 

3.  The applicant’s claim is based on her fear that she would be harmed or even killed by (i) her husband because of her extramarital affair and (ii) by the people sent by the employment agent because of her default in loan payment.  The applicant’s claim was set out in details in [7] of the decision of the Director, and summarised by the Judge in [2] to [3] of the Form CALL-l dated 18 July 2019, [2019] HKCFI 1797. In gist, the applicant was married with a daughter.  In early 2009, she discovered that her husband had an affair and her husband started to physically abuse her leaving bruises on her face and body.  The applicant was threatened by her husband not to report the domestic violence to the police.  She had no money to seek proper medical treatment but to apply some eucalyptus oil to ease the swelling of her wounds.  In 2010, the applicant decided to leave Indonesia for overseas employment so as to avoid her husband and she left without notifying her husband.  She stayed with the employment agent from October 2010 to May 2011 until she secured a job placement in Hong Kong as domestic helper. In November 2012, she met her boyfriend Au Tak-leung and she was impregnated in April 2013.  Her boyfriend broke up with her after knowing of her pregnancy. She told her mother about her pregnancy and her husband found it out from her mother’s relatives.  The husband was furious and threatened to kill her upon her return to Indonesia.  The applicant eventually miscarried in 2013 due to immense mental stress.  On the other hand, since the applicant only worked for two employment contracts with duration of a few months for each, she was unable to repay the employment agent.  In or about March 2012, the applicant’s mother informed her that the employment agent had sent henchmen to their house to pursue the debt and threatened to trace her down wherever she might go.  

4.  By the decision dated 5 December 2016, the Director rejected the applicant’s claim having regard to the torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4] grounds.  

5.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 4 July 2018 during which she was assisted by an Indonesian interpreter.  By a decision dated 8 August 2018, the Board dismissed the appeal.  For the reasons set out in [48] to [69] of the decision, the Board found that there was no evidence that the employment agent uttered threats or threatened violence against the applicant or her family.  At the hearing, the applicant specifically confirmed that she did not fear harm at the hands of the employment agent.  The Board further found that there was no credible evidence to suggest the applicant was at real risk of harm from her husband as they had no direct contact since the applicant left Indonesia in May 2011, thus there was no substantial ground for believing that the applicant would face any or any real risk of harm if refouled.  For the aforesaid reasons, the Board found that the applicant had failed to establish her case on all the applicable grounds. 

6.  The applicant filed her Form 86 together with a supporting affirmation on 24 August 2018 seeking leave to apply for judicial review against the decisions of the Director and the Board. At the applicant’s request, the Judge heard the leave application at a hearing held on 15 March 2019.  

7.  In her supporting affirmation, she advanced the following grounds for seeking relief (as duly summarized by the Judge at [10] of the CALL-1 Form):

(1)  She did not have legal representation or language assistance for her appeal to the Board;

(2)  The hearing bundle was delivered to her shortly before the appeal hearing without translation;

(3)  The Board’s Decision was not read or translated to her;

(4)  There is a violation of the principle of high standard of fairness; and

(5)  The Adjudicator was wrong in his observation that she was safe if she relocated herself in Indonesia.

8.  The Judge considered the intended judicial review not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review. He gave his reasons at [11] to [21] of the Form CALL-1 as follows:

“DISCUSSION

The Director’s Decision

11. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigation in the matter. The Board had considered her appeal and made its Decision.

12. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

13. Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

14. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She understood the Board’s Decision because she was assisted by her friend. She considered that she had had a fair hearing before the Board.

16. It is obvious that the Board accepted her facts. However, with those facts, the Board applied the relevant statutory provisions and the Convention to her case. It found that her case did not fall within the protection of the relevant laws.

17. The applicant does not have the absolute right to free legal representation at every stage of the proceedings as held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 at §22. Ground (1) fails.

18. Grounds (2) and (3) are inconsistent with what she said before this Court.

19. Grounds (4) and (5) are her opinions without any evidence in support of them.

20. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

21.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review.  Accordingly, I dismiss her application.”

9.  The applicant filed a notice of appeal on 30 July 2019, which contained the following grounds of appeal:

(1)  The Judge failed to acknowledge her language incapability which was unfair to her and there was a lack of language and legal assistance.

(2)  The Judge did not read back to her in her first language which showed that the Judge did not give weight to her handicap.

(3)  There was no interpretation of the hearing bundle available to her and the judgment was not read to her.

(4)  The Judge had failed to consider the significant impact and unfairness to her as a litigant for the lack of language and legal assistance.

(5)  It was baseless and merely presumptive on the part of the Judge that there had been interpretation and translation by her friends at “all material time”.

(6)  The applicant denied she had confirmed that she had no complaint against the Immigration officer or the Adjudicator nor she had agreed that the Board’s hearing was fair.  In fact, she did not understand fully the Board’s decision as she was only assisted by her friend.

(7)  The court should have a duty to ensure procedural fairness and the lack of avenue to seek an appeal against a decision made purely against credibility is procedurally unfair.

(8)  There had been a lack of language and legal assistance at all material times.

(9)  Although the Director, the Adjudicator and the Judge assessed her risk to be low, she stated that she had a right to live a life free from risk, which her country could not provide to her.  She had been suffering a terrible life and it would be the same if she were to return to her country.

(10)  The applicant had been suffering severe mental distress for her fear of danger of her life and she had at least shown that she would not be free from risk upon refoulement.

(11)  The assessment of her non-refoulement claim was not fair for there had been a lack of assistance provided to her.  The Judge erred in his consideration of the lack of interpretation service and he failed to make a finding on the same after the Director’s decision.

10.  In her written submissions, she made further her complaints of lack of legal and language assistance with the following grounds:

(1)  The Judge erred in his decision and failing to attain the high standard of fairness.  There was procedural unfairness.

(2)  On the basis of unfairness and unreasonableness, the applicant sought to reconsider her case and remit her case to the lower court for rehearing. she requested for legal and language assistance and further time to prepare further submissions in relation to the errors made by the authorities.

(3)  There was lack of legal representation for the appeal before the Board and the Director.

(4)  The applicant did not understand the Board’s decision especially the legal jargons which required the assistance of legal representative.

(5)  The lack of language assistance was unfair to her and deprived her of the right to lodge a proper appeal and put her case at risk for being dismissed for lack of grounds.

(6)  It is unfair that the Board’s decision was not read back to her and she did not understand why her case was dismissed.

(7)  The Judge had failed to exercise diligent duty of care to her as a non-represented litigant who does not understand English.

11.  We heard the appeal on 3 December 2019.  At the hearing, the applicant confirmed that everything she wished to present to us has been included in the papers and she has nothing to add.

Discussion

12.  The grounds of appeal as set out in the notice of appeal and the written submissions are unarguable.

13.  Firstly, this court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 prescribe that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings.  The applicant already had the benefit of legal representation in presenting her case to the Director of Immigration.  When she proceeded to appeal the Director’s decision, she was assisted by Indonesian interpreter at the Board’s hearing and the adjudicator had duly explained the appeal procedure to her and she had confirmed her understanding of the same, see [7] of the Board’s decision.  We also note that the applicant had relied upon the same factual grounds when conducting her appeal and she was given every opportunity to establish her case before the Board.  The same applied when she sought leave to apply for judicial review before the Judge.

14.  We further note that her Form 86, her supporting affirmations, notice of appeal as well as her skeleton argument were all written in English, which indicates either that she is familiar with the English language or that she has access to, or is able to seek, such assistance as she needs.  In the circumstances, we do not find anything amiss arising from the lack of legal and language assistance in the process after the Director’s making of the decision and her complaint is not reasonably arguable.

15.  Secondly, the Board dismissed the applicant’s case for the reason that she failed to establish her case on all applicable grounds, even on her account, the physical assault by her husband consisted of no more than bruises and swelling and with the fact that she had no direct contact with her husband since May 2011, the Board found it implausible for him to continue to look for her.  Further, the applicant had specifically confirmed at the Board’s hearing that she had no fear for the employment agent as it was her evidence all along that the agent only tried to locate her without any harm or threat of harm done to her or her family.  As such, the Board found no real risk of harm from her husband or the employment agent if she were to return to her country.  In our judgment, it was perfectly open to the Board to come to its conclusion after its assessment of evidence and there is no reasonable basis to challenge such evaluation of evidence by way of judicial review.

16.  In all, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we found no errors of law or procedural impropriety in his judgment.  It is plainly right for the Judge to refuse to grant leave to the applicant to apply for judicial review.

17.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.