RE ASTUTIK SUTADJI

CACV 414/2020

[2021] HKCA 305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 414 OF 2020

(ON APPEAL FROM HCAL NO 623 of 2018)

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J U D G M E N T

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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 Bruno Chan (“the Judge”) given on 17 August 2020 dismissing her application for 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 10 April 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 28 August 2017 rejecting her non-refoulement claim.

2.  The applicant has consented to her appeal being heard by two judges.

3.  The applicant failed to comply with the direction made by this Court on 10 December 2020 requiring her to lodge skeleton submissions by 8 February 2021, despite being warned that the hearing date would be vacated and the appeal would be dealt with on paper without an oral hearing in the event of non-compliance.

4.  The hearing date on 8 March 2021 was therefore vacated and we have dealt with the appeal on the basis of the materials already filed with the Court. 

5.  The applicant is a national of Indonesia.  She entered Hong Kong and worked as a domestic helper in Hong Kong from 4 February 2015 until her employment contract was terminated on 25 February 2015.  She did not depart but instead overstayed in Hong Kong.  She was arrested by the police on 14 September 2015.  She was convicted of breaching a condition of stay and was sentenced to three weeks’ imprisonment suspended for 36 months.  After that, a removal order was issued against her and she was released on recognizance on 16 October 2015.

6.  The applicant lodged a non-refoulement claim form on 25 July 2017.

7.  The applicant’s claim is based on her fear of being tortured or killed by her abusive husband and/or his creditors if she was to be returned to Indonesia.  Her case was set out in detail in [27] to [51] of the Director’s decision dated 10 April 2018 and summarised by the Judge in [1-6] of the Form CALL-1[1]. 

8.  The applicant’s case, in brief, is as follows.  In about 2004, the applicant’s husband became a drug abuser and a drug dealer.  Her husband borrowed money from local loan sharks to pay for deposit to one Mr Brown to obtain drugs for reselling.  In about 2005, her husband could not meet up with repayments and asked the applicant for money.  The applicant could not afford the high monthly interest either and the family went out of money.  The applicant and her husband has had frequent quarrels over money and he was abusive towards the applicant. 

9.  In about early 2008 and in about 2011, Mr Brown and his men attended the applicant’s home to look for her husband on multiple occasions and damaged furniture at their home.  Mr Brown made verbal threats to harm the applicant’s family but neither himself or his men  caused any physical harm to the applicant or her family.  The applicant therefore departed Indonesia to Hong Kong for work and to get away from her husband and his creditor.

10.  By his decision dated 28 August 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds. 

11.  By its decision dated 10 April 2018, the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found that there was no substantial ground for believing that the applicant’s perceived fear was real and foreseeable upon her return to Indonesia.  In particular, the nature and intensity of the past ill-treatment as alleged by the applicant did not attain a minimum level of severity with regard to a non-refoulement claim.  The applicant’s staying with her husband at the family home when she returned to Indonesia in about 2011 and 2012 was inconsistent with a person who has to run away out of fear.  The Board found no basis that the applicant would be subject to future risk of harm either by her husband or by Mr Brown if she returns to Indonesia.  The Board did not find it believable that the applicant could not have sought help from local authorities for matters arising from a personal debt between the applicant’s husband and Mr Brown.  Further, the Board found that internal relocation is available to the applicant and is reasonable because there is no evidence that Mr Brown has an overwhelming influence in Indonesia or is actively looking to cause harm to the applicant.

Application for leave to start judicial review

12.  On 12 April 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  As noted by the Judge in [11] of the Form CALL-1, the applicant did not set out any ground in support of her application.  Her challenge was contained in her written submissions and were twofolds:

(1)  she was not provided with legal representation for her BOR 2 risk which was therefore unfair and detrimental to her case; and

(2)  she was also not provided with sufficient language assistance given her vulnerability in language proficiency which was also detrimental to her. 

The Judge’s Decision

13.  After hearing the applicant on 9 July 2020, the Judge refused leave for the reasons set out in [12] – [19] of the Form CALL-1:

“12. For her complaint in Ground (1) of not being provided legal representation for her appeal before the Board, while it is true that by then the Applicant was no longer represented by DLS, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed 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: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

13. The Applicant already had the benefit of legal representation in presenting her case to the Director which clearly also included her BOR 2 risk, and that she was able to testify and make representation, again including BOR 2 risk, during her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty. Furthermore, based on the existing materials and the case advanced by her, and in the absence of any additional relevant facts from her, there was simply no basis to engage BOR 2 risk in her claim. As such and in the premises, I do not find anything amiss arising from the lack of legal representation in her appeal process before the Board, and I do not find this ground reasonably arguable.

14. As for her complaint under Ground (2) of not being provided with language assistance, it is clear that in both her process before the Director, when she was also legally represented, and before the Board, the Applicant was assisted by an interpreter during which as noted above she was able to make proper representation of her claim without any complaint or issue over interpretation or language assistance. In the absence of any particulars or specifics to demonstrate that the basis of her claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 61 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17. The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Appeal to Court of Appeal

14.  By a Notice of Appeal filed on 31 August 2020, the applicant appealed against the refusal of leave for judicial review on the following ground (sic):

“I am disagree with the decision of the authorities because this leads toward my life so I want to review my case to this court. Because this is very hard for me to appeal because I do not have any legal representation and limited resources. So I request to this court for review my case.”

Legal Principles

15.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

16.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

17.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6] and we will not repeat them here. 

18.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

Discussion

19.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

20.  We are of the view that the matters stated in the notice of appeal do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

21.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed.  There is no basis to disturb the Judge’s decision.

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