FADYA KHOLYQUMINA RIZKY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 34/2019

[2019] HKCA 500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 34 OF 2019

(ON APPEAL FROM HCAL NO 708 OF 2018)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 9 January 2019, refusing to grant leave to the applicant to apply for judicial review.

2.  The Background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 33.  We shall not repeat the same here.

3.  Briefly stated, the applicant is an Indonesian national. The applicant first came to Hong Kong on 28 March 2009 under the identity of Siti Kholipah Binti Matali (“ID2”) working as a domestic helper until 28 March 2011.  Her contract of employment was prematurely terminated on 5 May 2009. She did not leave and overstayed.  In August 2009, she applied for refugee status with UNHCR, which application was concluded in January 2010.  In August 2010, she was arrested by police.  She lodged her non-refoulemnet claim in or about September 2010.  Her claim was refused on 21 February 2013 and she was removed from Hong Kong under a removal order on 3 April 2013.

4.  The applicant came to Hong Kong again on 24 April 2014 under the identity of Fadya Kholyqumina Rizky (“ID1”), working as a foreign domestic helper until 24 April 2016.  Her employment was prematurely terminated on 27 June 2014.  She did not leave and overstayed since 12 July 2014.  She was arrested by the police on 13 August 2015 and was then referred to the Immigration Department for investigation.  On 15 October 2015, she lodged her non-refoulement claim.  The applicant’s claim was based on her fear that she would be harmed or even killed by the wife of a rich money lender (“the Wife”) as the Wife found out the money lender’s plan to marry the applicant as his second wife.  She also received death threat from her father because she refused to marry the rich man as his second wife.  Upon enquiries, the applicant claimed she was properly known as ID1 and her Indonesian passport was lost.  She admitted that she used ID2 to enter into Hong Kong and ID2 was not related to her.

5.  By a Notice of Decision dated 9 September 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 8 August 2017, the Director rejected the applicant’s claim on BOR 2 risk.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After the hearing on 15 February 2018, the Board dismissed the appeal on 6 April 2018.  The Board found that the applicant's evidence was vague and evasive and there were many contradictions and inconsistencies in her allegations about the physical abuse and attempted rape by her father.  Her credibility was further damaged by her use of two identities to enter into Hong Kong to work as domestic helper and her concealment of the fact that she had previously worked in Singapore.  The Board, after considering all the evidence, did not accept that she was tortured or harmed by her father nor had she acted as a guarantor for the bank loan borrowed by her Indonesian friend that caused her father to force her to marry the rich man as his second wife in order to repay the bank loan.  The Board took the view that the applicant had manufactured her entire claim in order to prolong her stay in Hong Kong and rejected her non-refoulement claim on all applicable grounds.

THE JUDGE’S DECISION

7.  The applicant filed her Form 86 on 24 April 2018 to apply for leave for judicial review against the decisions of the Director and the Board.  Since the Director’s decision was superseded by the Board’s decision and thus not susceptible to judicial review, the Judge only focused on the grounds of intended challenges against the Board’s decision as follows :

(1)   failing to conduct sufficient inquiry and to evaluate the relevant country of origin information (“COI”);

(2)   failing to properly consider the issue of state protection;

(3)   failing to take into account her psychological harm;

(4)   wrongly deciding her risk of harm as low; and

(5)   failing to give adequate reasons for its findings and decision.

8.  On 9 January 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [34] – [41] for his refusal to grant leave :

“ Discussion

34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

35. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’(Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). Nevertheless, it is said in Re Islam Rafiqul :

‘ 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 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 (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.’ (CACV 219/2018 [2018] HKCA 570, para 14(1)).

36.   The Applicant complained the Adjudicator failed to consider her claim properly.

37.   The Adjudicator considered the Applicant's allegations in detail. She found the Applicant's evidence vague and indirect. There were many inconsistencies in the Applicant's allegations. The Applicant had added allegations and changed her version. The Adjudicator considered all the evidence and concluded the Applicant was incredible. She found the Applicant fabricated her non-refoulement claim and thus refused the Applicant’s claim with respect to all the four applicable grounds. The Adjudicator had proper basis to come to her conclusion, which was not Wednesbury unreasonable.

38.   The Adjudicator considered there was not any risk that warranted non-refoulement protection including BOR3 risk. The Adjudicator’s decision must be read as a whole. The Adjudicator had given detailed reasons of her analysis of the Applicant's case.

39.   The Applicant complained the Adjudicator failed to take into account her psychological harm. As the Adjudicator disbelieved the Applicant’s claim of fear, there was really no fear or harm of any kind to be considered.

40.   I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the case. She considered the Applicant's claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated.

Conclusion

41.   The Applicant's complaints are not reasonably. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.”

The Appeal

9.  In the Notice of Appeal filed on 22 January 2019, the applicant put forward the following grounds of appeal :

(1)   failing to take into account the psychological strain and threats to the applicant, resulting from repeated threats to her and her family;

(2)   failing to consider the concept of extended state acquiescence;

(3)   failing to give reasons for dismissing the applicant’s claim on BOR 3 risk and the dismissal lacked basis; and

(4)   failing to make proper and sufficient enquiries on the relevant COI and failing to properly assess the risk of harm faced by the applicant from the loan shark.

10.  In the written submissions, the applicant repeated the factual background of her non-refoulement claim and the grounds for judicial review as set out in her Form 86 which were advanced before the Judge and canvassed at the lower court hearing.

11.  We heard the appeal on 30 April 2019.  The applicant did not make any oral submission.

DISCUSSION

12.  This court has repeatedly emphasised that 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.  Here, the applicant is merely repeating the arguments that were canvassed at the lower court and duly rejected by the Judge.  The grounds of appeal are plainly not arguable.

13.  Further, assessment of evidence on COI materials, risk of harm and state protection 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 or procedural unfairness or irrationality in the decision of the Board.  We agree with the Judge that there was no error of law nor procedural unfairness in the Board’s decision and it had adhered to the high standard of fairness required of the applicant’s non-refoulement claim.

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.