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

CACV 1 /2020

[2020] HKCA 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1 OF 2020

(ON APPEAL FROM HCAL NO 1042 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 23 December 2019[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim. This appeal is dealt with on paper without a hearing due to the non-compliance by the applicant of the directions given by the Registrar of Civil Appeals as mentioned below.

2.  The applicant is a national of Indonesia of 35 years old.  She previously worked in Hong Kong as a domestic helper and her last employment in Hong Kong ended on 25 August 2013.  She last entered Hong Kong as a visitor on 3 October 2013.  She overstayed and was arrested by the police on 3 April 2014. She lodged a non-refoulement claim on 22 April 2014.  Her claim was made on the basis that she would be harmed or killed by her husband and his creditor if she were to be returned to Indonesia.

The Director’s decision

3.  By a Notice of Decision dated 16 February 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.  Taking into account that the applicant had not met her husband again when she returned to Indonesia in 2010 and 2012 and that he had changed his telephone number to avoid her, the Director found there is no substantial ground to believe that there is a real risk of being harmed or killed by her husband as perceived.  The Director considered that the asserted ill-treatment inflicted by the creditor had not attained a minimum level of severity such that non-refoulement protection is warranted as the applicant had never been physically injured by him.  The dispute is private dispute with nothing to do with her race, religion, nationality or membership of a particular social group or political opinion.  There is nothing to show that the state was involved in, was indifferent to or had provided any form of encouragement to her husband or the creditor in threatening or abusing her.  The Director assessed that state protection is available and internal relocation option is viable so the perceived risk of harm, if any, is avoidable.

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 20 March 2018.  The Board considered that the applicant’s experiences do not amount to persecution, ill-treatment for the purpose of BOR 3 risk or torture.  Her problems are of personal nature.  There is no suggestion that the Indonesian government has any adverse interest in her or that her rights under BOR 2 risk would be violated.  The alleged risk of harm was confined to her previous home area in Jakarta. The applicant’s family had left Jakarta and she also confirmed that she has no intention of returning to that area.  Thus, the Board held that the applicant’s claim fails on all applicable grounds and rejected the appeal on 1 June 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 8 June 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

7.  She put forward these grounds for her intended challenge:

(1)     procedural impropriety in the failure of the Director and the adjudicator to conduct sufficient independent inquiry into the relevant Country of Origin Information (“COI”) materials or to conduct a critical analysis of such materials or to provide adequate reasons for preferring certain information over the others, and for cherry picking those materials to support their conclusions;

(2)     procedural impropriety in their failure to consider the concept of extended state acquiescence in the consideration of her claim;

(3)     error or misdirection in law in their failure to apply or properly apply the obligation of a signatory state to adopt reforms on means of redress aimed at ensuring the safety of its citizens which are effective in any event;

(4)     irregularity in their failure to give reasons of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk;

(5)     error or misdirection in law in their failure to take into account the consideration of psychological strain and threats to the applicant resulting from repeated threats to her person or to members of her family; and

(6)     irrationality in their decision as her creditor was still looking for her and that she cannot relocate to other place as she would be traced or located anywhere in Indonesia.

The judge’s decision

8.  The applicant appeared at the hearing before the judge on 15 October 2019.  The judge considered that the applicant’s grounds are just broad and vague assertions without particulars or elaboration as to how they applied to her case.  He did not find any of them reasonably arguable. And it was factually incorrect to claim that the Director and the adjudicator did not give reasons for their assessment of her BOR 3 risk.  Having considered the decisions of the Director and the Board with vigorous examination and anxious scrutiny, the judge did not find any error of law or procedural unfairness, or failure to apply high standards of fairness in the consideration and assessment of the applicant’s claim.  As the applicant does not have any prospect of success in her intended judicial review, the judge dismissed the leave application on 23 December 2019.

The grounds of appeal

9.  The applicant filed a Notice of Appeal on 2 January 2020 against the judge’s decision.   Her grounds of appeal are that the decision is away from the facts and reality related to her case and there is no transparency in the decision.

Non-compliance of the Registrar’s directions

10.  Directions were given by the Registrar of Civil Appeals on 10 March 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

11.  The appeal was scheduled to be heard on 27 May 2020[6].  On 17 April 2020, Kwan VP extended the deadline for the applicant to comply with the Registrar’s directions to lodge a skeleton argument to 8 May 2020[7].

12.  The applicant failed to lodge a skeleton argument on or before 8 May 2020. As the directions of the Registrar were not complied with, she shall be deemed to waive her right to have an oral hearing and elect to have the appeal disposed of on paper. By letter dated 15 May 2020, the court informed the applicant that the hearing date of 27 May 2020 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

15.  The applicant’s grounds of appeal are bare assertions without particulars, elaboration or evidence in support.  They do not constitute viable ground to reverse the judge’s decision.  She failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

16.  There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.