TITIN FATMAWATI v. TORTURE CLAIMS APPEAL BOARD

CACV 310/2023, [2024] HKCA 56

On Appeal From [2023] HKCFI 2527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 310 OF 2023

(ON APPEAL FROM HCAL NO 3343 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 4 October 2023[1] refusing to grant extension of time to apply for leave to apply for judicial review and refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 6 June 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 28 November 2018 rejecting the applicant’s non-refoulement claim. 

Background

2.  The applicant is a national of Indonesia born in 1982.  She was permitted to work as a foreign domestic helper in Hong Kong until 29 December 2012.  Her employment contract was prematurely terminated on 2 August 2012 and she was required to depart on or before 16 August 2012.  The applicant overstayed and was arrested on 23 September 2012.  The applicant lodged a torture claim by way of written representations dated 21 November 2012 and 2 September 2013 respectively.   The applicant’s claim was made on the basis that if she returned to Indonesia, her parents would harm or kill her due to her marriage to a non-Muslim husband and a loan shark would harm or kill her due to her parents’ failure to repay a debt.  The factual background of the applicant’s claim was set out at [17] to [24] of the Board’s decision.

3.  By notice of decision dated 18 July 2013, the Director assessed the applicant’s claim in relation to the ground of torture risk[2] and determined it against her. 

4.  By notice of decision dated 28 November 2018, the Director assessed the applicant’s claim in relation to all remaining applicable risks and determined it against her.  Those grounds are BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5] 

5.  The applicant appealed to the Board against the Director’s decision dated 28 November 2018.  It appears that the applicant did not seek to appeal to the Board against the decision dated 18 July 2013.  An oral hearing was held on 27 March 2019, during which the applicant gave evidence and answered questions from the Board. At the oral hearing, the applicant submitted a copy of her son’s birth certificate and her marriage certificate issued by Hong Kong registries. The Board accepted that the applicant and a Hong Kong permanent resident, namely Fong Yik Man, married on 26 June 2017 and they had one son born on 8 April 2015, who was also a Hong Kong permanent resident.  The applicant further submitted, inter alia, that her parents borrowed money but defaulted on repayment as their business was not profitable, contrary to the explanation stated in her written forms that her parents borrowed money for their orange business but defaulted on repayment as flooding and damage ruined their farming business.  She also submitted that she did not know the identity of the loan shark except that he was of the Dayak tribe, the amount of debt or whether the debt had been repaid yet as her last contact with her parents was over telephone in 2012 or 2013.  Having considered the totality of the evidence, the Board found against the applicant’s claim.

6.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Indonesia. In light of the inconsistencies in her evidence,  it found that there was in fact no real risk of harm if the applicant returned to Indonesia, because it did not accept that the applicant’s parents were fanatic Muslims who had made any threats to harm or kill her due to her marriage to and her having a child with a non-Muslim man or any other reason.  Further, the Board did not accept that the applicant’s parents had an outstanding loan owed to any loan shark or that she had ever been pressured by her family or anyone else to repay or marry the loan shark.  The Board also considered that there had been no significant changes in circumstances of the applicant since the Director’s decision dated 18 July 2013, and so the Board did not assess torture risk in its decision.

7.  In conclusion, the Board held that there was no real risk of harm on the three applicable grounds for the applicant in the event of refoulement to Indonesia.  By its written decision dated 6 June 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision dated 28 November 2018.

The Judge’s decision in the court below

8.  More than 2 months after the expiry of the 3-month time limit prescribed by Order 59, rule 4(1) of the Rules of the High Court (Cap 4A), on 11 November 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  She did not specify any ground for judicial review in the Form 86 or in the two accompanying affirmations.  In her affirmation dated 8 November 2019, she simply repeated the basis of her claim for non-refoulement protection.  In her affirmation dated 11 November 2019, she annexed the Board’s decision, copy of her Recognizance form and copy of her marriage certificate.

9.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 4 October 2023, the Judge issued his decision, refusing to grant extension of time to apply for leave to apply for judicial review and refusing to grant leave to apply for judicial review.  The reasons were set out in [14] to [21] of the Form CALL-1 as follows:

“ 14. As the last day of the 3 month-period for her to file her Form 86 fell on 6 September 2019, the Applicant was therefore more than 2 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15. In the Applicant’s case, a delay of more than 2 months must be considered as very substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day of 6 June 2019 to her last reported address which is the same as stated in her present application without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

16. As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forth any proper ground for her intended challenge, and in the absence of any error of law or irrationality 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 merits in her intended application either.

17. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

18. 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 25 – 56 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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.

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

20. 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.

  21.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.”

Appeal to this Court

10.  On 10 October 2023, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were that she disagreed with the lower court’s decision, that she would have to face hardship if refouled, that her enemy would be searching for her to kill her if refouled, and that the Board had relied on sources of news that were not officially recognized.    

11.  The applicant lodged her written submissions on 16 November 2023.  Those submissions largely consist of the basis of her non-refoulement claim and criticisms of the decisions of the Judge and the Board.  In addition, she submitted that the Judge erred in law for not finding the decisions of the Director and the Board to be irrational and for not finding procedural unfairness as the Director and the Board were required to give reasons to justify their decisions.  She also requested more time to submit new documents from her home country. 

12.  At the hearing, the applicant said that she has a son who was a Hong Kong resident and that he wants to take care of him as her husband’s family cannot do so.

13.  As such, we shall accordingly determine the appeal on the basis of the available documents and materials supplemented by the oral submissions of the applicant.

Discussion

14.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

15.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it did not find the applicant’s claims to be credible.  The Board fundamentally did not accept the applicant’s claims that her parents were fanatic muslims who would harm or kill her over her Chinese husband and their child or that she had been pressured by her family to repay or marry a loan shark.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As to the applicant’s criticisms, they consist of mere general and bald assertions regarding the decisions of the Board and the Judge without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

16.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

17.  The applicant’s appeal is accordingly dismissed.

18.  As we explained to the applicant at the hearing, this decision concerns only her claim for non-refoulement protection, and does not in any way affect her application to the Immigration Department for permission to stay in Hong Kong as the spouse and mother of Hong Kong permanent residents.