KASIRA v. TORTURE CLAIMS APPEAL BOARD

CACV 544/2021

[2022] HKCA 732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 544 OF 2021

(ON APPEAL FROM HCAL NO 1179 OF 2021)

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J U D G M E N T

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

1.  On 24 November 2021, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 6 December 2021.

2.  The applicant is a national of Indonesia. She is 41 years old. She last arrived in Hong Kong on 2 September 2008 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 4 February 2009. She subsequently overstayed and was arrested by the police on 6 November 2010. She lodged a torture claim on 16 November 2010 and subsequently withdrew it on 30 August 2012.

3.  Upon the applicant’s request, the Director of Immigration (“the Director”) allowed her to re-open her torture claim on 19 March 2021. Her claim was made on the basis that she will be harmed or killed by her father, a moneylender and his people as she failed to remit money to her father to repay the debt.

4.  The Director considered the applicant’s claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] under the unified screening mechanism.

The Director’s decision

5.  By a Notice of Decision dated 25 May 2021, the Director rejected the applicant’s claim on all applicable grounds.

6.  The Director assessed the behaviour of the moneylender and the applicant’s father showed that they had no real intention to kill her. The Director noted that the applicant’s father only made one death threat back in 2010 and the applicant did not even know the current whereabouts of her father. Besides, her problem is entirely a private dispute and there is no indication of involvement of government officials. There is also no concrete evidence to show that the moneylender is still actively looking for the applicant and her family after the long lapse of time. The Director further considered that the availability of state protection and internal relocation alternatives in Indonesia should further lower or negate the perceived risk.

The Board’s decision

7.  The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 30 July 2021. The Board noted that the applicant has not received any phone call from the moneylender over the past 16 years and there is no evidence to show that the moneylender has taken any steps in reaching the applicant. The Board considered that the death of the applicant’s youngest brother is not indicative of a likely risk of harm to the applicant as her father was not injured in the incident and there is no evidence to show that the other three brothers experienced harm or threats from the moneylender. The Board found that the applicant is not reasonably likely to be at risk of harm from the moneylender and there is no information to show that the moneylender is related to the government. In addition, the Board considered that reasonable state protection would be available to the applicant in Indonesia and she has viable options of internal relocation to other parts of Indonesia such as Jakarta, Banyumas or Bali. Therefore, the Board rejected the appeal on 11 August 2021.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 23 August 2021 to seek leave to apply for judicial review against the decision of the Board. She put forward the following grounds for her intended challenge:

(1)  The Director and the Board reached their decisions wrongly in assessing her non-refoulement claims.

(2)  The decisions were not reasonable and not fair as required by the Wednesbury test.

(3)  The right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. It must be protected from extra-judicial killings that she may face if she is deported back to her country.

The judge’s decision

9.  The applicant attended the hearing of the leave application before DHCJ Bruno Chan on 4 November 2021. The judge found that the applicant failed to provide any particulars or elaboration for her grounds. As the applicant failed to clearly and properly identify any error of law, irrationality or procedural unfairness in her process before the Board or in the Board’s decision, the judge held that there is no reasonably arguable basis for her intended challenge and dismissed the leave application on 24 November 2021.

Grounds of appeal

10.  The applicant stated the following grounds of appeal in the Notice of Appeal filed on 6 December 2021:

(1)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in her case which has led to an unfair outcome of rejecting her non-refoulement claim. The Director, the Board and the Court have failed to take this issue into account.

(2)  The Board failed to make sufficient enquiry before finalising the determination.

(3)  The Board failed to give sufficient chance to the applicant to adduce relevant evidence. She was detained at the Castle Peak Bay Immigration Centre and was not given time to prepare her case properly.

(4)  The Director kept including meanings which suited a pre-conceived conclusion while referring to the relevant country of origin information (“COI”). This is a clear case of unfair attitude which is enough to render the decision void.

(5)  The gravity of the applicant’s circumstances has not been weighed or realised by the Director and the Board. She should be given an opportunity to plead her case properly.

11.  In her written submissions, she further submitted that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and that the Board acted in a procedurally unfair manner without properly assessing her credibility.

Legal Principles

12.  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.

13.  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 scrutinising the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board. The assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation is 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.

14.  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.

Analysis and disposition

15.  The applicant has failed to adduce evidence to show the presence of state acquiescence in her case. Moreover, she did not put forward any reasonably arguable ground to show that the judge was wrong in refusing to grant leave for her to bring judicial review against the Board’s decision. She alleged that she was not given sufficient chance by the Board to adduce relevant evidence but has failed to identify what evidence she intended to adduce. Up till now, she still has not adduced any evidence to refute the Board’s findings. The Board had given detailed analysis and explanation for its findings and the judge’s decision is well founded. The applicant failed to show 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.

16.  We see no merit in any of the grounds of appeal and contentions raised by the applicant. We therefore dismiss her appeal.