RE SUNARSIH

CACV 533/2018

[2019] HKCA 574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 533OF 2018

(ON APPEAL FROM HCAL 306/2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

1.  By a judgment dated 2 April 2019[1] (“Judgment”), this court dismissed the abovenamed applicant’s appeal from Deputy High Court Judge Bruno Chan (“Judge”)’s decision dated 19 October 2018[2] refusing her leave to apply for judicial review of the Torture Claims Appeals Board (“Board”)’s decision dated 22 February 2018 (“Board’s Decision”) in respect her non-refoulement claim.

2.  By a notice of motion filed on 15 April 2019, the applicant sought leave to appeal against the Judgment to the Court of Final Appeal (“CFA”).  On 29 April 2019, the applicant filed written submission in support of her application.

3.  Before we go into the bases put forward by the applicant to seek to justify leave to appeal to the CFA, it is helpful to recap:

(1)   The non-refoulement claim (“NRF Claim”) of the applicant, a 35 years old Indonesian female of Muslim faith, was premised upon a fear of ill-treatment arising partly from past poor relationships and partly from the fact that she had entered into a secret extra-marital relationship while in Hong Kong.  In particular, she claimed to be afraid of (1) her husband who had slapped the applicant around inflicting on her minor injuries when he was drunk but with whom she had completely lost contact since June 2009; (2) her husband’s creditor(s) who did not appear to have harmed anybody in relation to the husband’s unpaid debts and to whom the applicant last made some repayment for her husband in June 2009; (3) her parents-in-law who had never physically abused her but with whom she generally did not have a harmonious relationship; and (4) her teenage son from whom she feared rejection but with whom she had also lost touch since June 2009.

(2)   The applicant was initially represented by the Duty Lawyer Service (“DLS”) before the Director of Immigration (“Director”).  On 17 February 2016, the Director rejected the NRF Claim against torture risk, persecution risk and “BOR 3” risk.  Legal assistance from the DLS ceased at this point.  The Directed then invited the applicant, but she failed, to submit additional relevant facts that the Director might consider in assessing the NRF Claim on other grounds.  In the absence of a response, on 8 August 2017, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk.

(3)   On appeal to the Board, the applicant was found to have failed to make out a case on the facts on all applicable grounds (including “BOR2” risk).  Her said past experiences in Indonesia did not amount to the kinds of harm for which protection can be sought under a non-refoulement claim.  Anyway, she had had no contact with her husband, son or parents-in-law since 2009.  Even if she had been able to show that she faced a real or genuine risk of harm as claimed, she would have had many options for relocation in Indonesia.

4.  The matters advanced by the applicant in her notice of motion and written submission appear to be focused upon the dismissal of the NRF Claim for “BOR2” risk which she claimed was unfair because:

(1)   The Director did not give her any oral hearing on “BOR2” risk.

(2)   She was not provided with language assistance, rendering her unable to properly understand or deal with the Director’s letter inviting submission of further information relevant to “BOR2” risk.

(3)   The Director did not refer the NRF Claim to the DLS for “BOR2” risk.  The lack of legal representation for “BOR2” risk in her case was discriminatory because other claimants who had their non-refoulement claims considered on all applicable grounds in one go would be assisted by the DLS also on “BOR2” risk.

5.  The applicant also complained in paragraph 4 of her notice of motion that, being unrepresented, she could not be expected to be able to state clearly what error the Judge had made.

6.  The applicant has not by her notice of motion or written submission identified any issue of great, general or public importance that should be submitted for determination by the CFA.  The statutory criteria laid down in s 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) is thus not met.

7.  Nor do we see any basis to grant leave on the “otherwise” limb under s 22(1)(b).  The applicant did get an oral hearing before the Board which dealt with “BOR2” risk with the other 3 applicable grounds. That hearing was a complete re-hearing.  An Indonesian interpreter was present to help the applicant.  She was free to bring to the Board’s attention additional information relevant to the assessment of “BOR2” risk, if any.  The matters relied on in support of the NRF Claim set out in paragraph 2 of the Judgment and recapped in paragraph 3(1) above were taken by us from the Board’s Decision. The Board in turn just recorded the applicant’s own evidence.  It is not suggested that the Board had left out anything or got any point wrong.  Leaving aside the legal position that the applicable high standard of fairness does not give a non-refoulement claimant an absolute right to free legal representation at all stages of the proceedings, the applicant did not suffer any or any real prejudice caused by the lack of legal representation on the “BOR2” risk claim. “BOR2” risk is a risk of being deprived of one’s life.  On the said facts advanced by the applicant, we do not see how it could possibly be argued that she is exposed to any such risk.

8.  For these reasons, we dismiss the notice of motion.