RE KARTINI

CACV 240/2019

[2019] HKCA 1022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2019

(ON APPEAL FROM HCAL 1911/2018)

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JUDGMENT

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 23 May 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 27 February 2018 and the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 24 August 2018.  In the former decision, the Director rejected the applicant’s claim for non-refoulement protection in Hong Kong; and, in the latter decision, the Board upheld the decision of the Director.

Background

2.  The applicant is a national of Indonesia. She had been working in Hong Kong as a domestic helper since 2003.  According to her last permission to remain, she was allowed to work in Hong Kong as a domestic helper until 18 December 2014.  Her employment contract was prematurely terminated on 3 May 2014. She did not depart and overstayed illegally.  She surrendered to the Immigration Department on 1 December 2015, and lodged her non-refoulment claim by way of written submissions on 22, 23, and 28 February 2017.

3.  The applicant’s claim was based on the fear that, if refouled, she would be harmed, or even be killed, by her husband and her husband’s creditors because she acted as a guarantor for her husband’s loan.  The factual background of this case was succinctly summarized by the Judge in [3] of the Form CALL-1 ([2019] HKCFI 1281).

4.  By a notice of decision dated 27 February 2018, the Director assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4].

5.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 7 June 2018, and the applicant gave oral evidence during the hearing.  Having considered the applicant’s evidence, the Board was not satisfied that the applicant was a truthful witness in relation to critical aspects of her claim.  The Board did not accept that there was substantial ground for believing that the applicant would be in danger of being subjected to ill-treatment if refouled.  By a decision dated 24 August 2018, the Board dismissed the applicant’s appeal/petition.

The judge’s decision

6.  The applicant filed her Form 86 on 11 September 2018, seeking leave to apply for judicial review against the Director’s and the Board’s decisions.  She set out a number of grounds for seeking relief in her affirmation filed on the same day in support of the application.  Most of the grounds concerned the decision of the Director.  So far as the decision of the Board is concerned, the applicant submitted that the Board failed to give her sufficient time and chance to arrange relevant evidence in support of her case.  The grounds were summarized by the Judge in [10] of the Form CALL-1. 

7.  An oral hearing was held before the Judge on 28 March 2019.  At the hearing, the applicant made no comments in respect of the findings of the Board. 

8.  The Judge refused to grant leave for the applicant to apply for judicial review.  In reliance on the judgment of this Court (differently constituted) in Re Moshsin Ali [2018] HKCA 549, the Judge held that the application for leave to apply for judicial review against the Director’s decision failed in limine.  At [20] of the Form CALL-1, the Judge rejected the applicant’s complaint against the Board’s decision on the grounds that she did not raise it with the Board and that she was unable to identify what further evidence she would like the Board to consider.  

The appeal

9.  On 30 May 2019, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

“ … the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.” (sic)

10.  The applicant lodged her written submission on 26 July 2019.  In it, she cited ST v Director of Immigration [2014] 4 HKLRD 277 and quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  She submitted that the Board acted in a procedurally unfair manner in dealing with her application.  She also made reference to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  Lastly, the applicant referred to section 37ZT for the late filing of the notice of appeal.

11.  By a letter dated 30 May 2019, the applicant gave consent to this appeal being dealt with by a 2-judge court.

12.  We heard the appeal on 3 September 2019.

General principles

13.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.  

(1)  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 scrutinizing 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.

(2)  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.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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. 

Discussion

14.  In the present case, the Board rejected the applicant’s claim due to its adverse finding on her credibility.  As explained above, assessment of evidence is within the province of the Board. Sound reasons were given by the Board for rejecting her evidence[5]. The court will not interfere with the findings of the Board unless they are reversible on the public law grounds. 

15.  After having reviewed the materials available before her, the Judge found no reasonable prospect of success to challenge the findings of the Board in the intended judicial review.

16.  Essentially, what was stated in the notice of appeal was an invitation to this Court to reassess the applicant’s claim afresh. As explained, this is not a viable course in an appeal against a refusal of leave to apply for judicial review.

17.  There is no viable ground of appeal in the skeleton submissions. The applicant did not pinpoint any error on the part of the Judge.  There is no basis for us to accept that the Board acted in a procedurally unfair manner. 

18.  We cannot see any relevance of Section 37ZT in the present appeal.

19.  We agree with the Judge that leave to apply for judicial review should be refused.

20.  For these reasons, we dismiss the appeal.