RE SUTIAH

CACV 298/2017

[2018] HKCA 220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 298 OF 2017

(ON APPEAL FROM HCAL NO 372 OF 2017)

__________________________

__________________________

________________

J U D G M E N T

________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 15 December 2017­ refusing leave to the applicant to apply for judicial review. The applicant arrived in Hong Kong from Indonesia to work as a foreign domestic helper on 12 May 2000. She did not leave after her visa had expired. She was arrested on 8 May 2012. On 2 April 2014, she lodged a non-refoulement claim. The claim was based on the threat to her life from a loan shark. According to the applicant, she borrowed money to treat her father’s injured leg in 1999. When she could not repay the loan, the loan shark forced her to marry him. When she refused, he beat her and tried to rape her.

2.  The Director decided against the claims on 17 July 2015.  The initial decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 20 October 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against her (we refer to these decisions collectively as “Director’s Decision”).

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 3 January 2017, the Board dismissed the appeals on 30 June 2017 (“Board Decision”).

4.  The intended judicial review was in respect of the Director’s Decision and the Board Decision.  The Form 86 filed by the applicant on 10 July 2017 did not provide any ground for seeking relief.

5.  In her affirmation of 10 July 2017, she gave the following grounds of judicial review:

(1)  The Board failed to consider her credibility (§7 Affirmation)

(2)  The Board’s assessment was based on its “own account … absolute[ly] … against [her] fact and fear” (§8)

(3)  “The Director failed to discharge his obligation to conduct sufficient (sic) country of origin information” including giving inadequate weight to relevant COI information and cherry-picking information (§9)

(4)  Failure to take into account the extended concept of state acquiescence (§10)

(5)  Failure to provide sufficient basis to support the conclusion that she will not be subject to torture, CIDTP, BOR 2 risk and persecution risk (§11)

6.  After reviewing the materials carefully, the Judge refused to grant leave.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Board, she gave the following reasons for refusing leave at [19] to [25] of the CALL-1 Form of 15 December 2017:

“19. The applicant seeks to apply for leave against both the Director and the adjudicator which cannot be correct. The Director’s decisions were given on 17 July 2015 and 20 October 2016 but her Form 86 was filed on 10 July 2017, so 24 months and nearly 9 months later respectively. Order 53 requires a Form 86 to be filed within three months from the date of the decision. The applicant has not explained the delay as required and in any event the applicant has appealed those decisions to the TCAB so there is no room to judicial review those Director’s decisions unless there are very special circumstances or grounds which are not evident here.

20. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. The applicant’s complaints against him and the procedure undertaken is not made out.

21. The applicant is aggrieved the adjudicator did not find her credible and repeats parts of her claim as well as gives explanations in answer to the adjudicator’s criticisms. I would not interfere with the adjudicator’s finding; it is not unreasonable. In any event, the adjudicator added that even if her evidence was true, the injuries she claims to have suffered was not of the degree of severity required to establish a claim for non refoulement protection under any applicable ground.

22. There is a criticism the adjudicator failed to conduct sufficient enquiry into relevant COI material, failed to provide reasons for his preference and cherry picking material. However, there are no particulars provided. The adjudicator’s decision is said to be unlawful because it was supported by factors which should not be taken into account but I do not follow the submission nor can I make sense of it. These grounds are not arguable.

23. The adjudicator is accused of failing to take into account the extended concept of State acquiescence. Firstly, the adjudicator did not find the applicant faced a real and personal risk of ill-treatment or harm which must exist and therefore was not required to go into this concept. Secondly, the adjudicator did in any event consider whether there is acquiescence by studying the relevant country of origin information. In his reading he found no evidence of consistent pattern of gross, flagrant or mass violation of human rights. He found no evidence the State failed to discharge its duties; no evidence of any acquiescence. There is no merit in this ground.

24. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

25. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

7.  In the notice of appeal of 28 December 2017, the applicant repeated the same grounds in her affirmation dated 10 July 2017. Additionally, she challenged the judge’s decision in not adjourning the hearing on 16 October 2017. 

8.  The applicant agreed by a letter of 28 December 2017 that the appeal can be heard by two judges.

9.  On 26 February 2018, the applicant filed a skeleton argument.   She explained why her life would be in danger if she were to return to Indonesia.  She also submitted that the Indonesian police could not protect her from the loan shark.

10.  We heard the appeal on 20 April 2018. The applicant told us that she applied for legal aid in March 2018. However, she could not explain why she did not apply earlier given that the appeal was brought in December 2017. Further, the applicant has already produced skeleton submissions prepared with the assistance of someone she relied upon. In the circumstances, there should not be further delay and we lift the legal aid and proceed with the processing of the appeal.

11.  Having considered the submissions of the applicant in light of the materials before us, we agree with the judge’s observations in refusing leave.

12.  The crux of the appeal lies in the truthfulness of the applicant’s allegations.  The Board noted that the applicant made her non-refoulement claim at a very late stage (see para 39 of the Board Decision).  The Board also noted her inconsistent account on the calculation of interest, the internal consistencies between her oral evidence and the Non-refoulement Form (NCF) and the inherent improbability of her story (see paragraphs 54 to 57 of the Board Decision).  The Board found the applicant’s case to be incredible.

13.  The applicant argues that the Board was wrong in finding her to be incredible.  However, the applicant could not demonstrate that the Board had made any legal error, such as ignoring relevant evidence or incorrect understanding of evidence.  Assessing credibility is primarily the task of the Board and application for judicial review does not provide an avenue for revisiting the assessment by the Board with the hope that the court may consider the matter afresh even in the absence of any legal error.  

14.  The Board also held that state protection is available.  The applicant and her family never reported the incident to the police.  There is no evidence that the police would have ignored them had they chosen to report.

15.  Other than the bare assertions from the applicant, she could not provide any reason why state protection is not available to her.  There is no merit in this ground.

16.  Regarding the refusal to adjourn the hearing on 16 October 2017, the learned judge dealt with this application at [2] of CALL-1 Form:

“ 2. The applicant requested an oral hearing of this application if leave was not granted on the papers which was set down for 16 October 2017. The applicant applied for legal aid which was refused on 7 September 2017. The applicant reapplied for legal aid on 25 September 2017 and requested an adjournment of the hearing date. I refused an adjournment and the applicant appeared before me on 16 October 2017. I asked her on what new grounds did she apply for legal aid again. She replied that she had no new grounds and had made a second application based on the same grounds as her first rejected application. For that reason, I did not entertain an adjournment to await the result of her second legal aid application. I saw no likelihood of success in her second application.”

17.  The second legal aid application was doomed to fail.  The learned judge was right in refusing to adjourn the hearing.  There is no merit in this ground.

18.  We do not see any error of law or procedure in the proceedings before the Director and the Board and there is no reasonably arguable basis to challenge the fairness of the process. We agree with the judge that leave to apply for judicial review should not be granted.

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