RE MARYANA

CACV 284/2018

[2018] HKCA 881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 284OF 2018

(ON APPEAL FROM HCAL 468/2017)

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JUDGMENT

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

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock dated 27 June 2018 refusing the applicant leave to apply for judicial review.

2.  Due to the non-compliance with the unless order of 13 August 2018, the hearing originally fixed for 19 October 2018 was vacated.  We now deal with this appeal on the papers based on the materials already lodged.

Background

3.  The applicant is an Indonesian national.  She had been working as a domestic helper in Hong Kong since 2011.  Her last arrival in Hong Kong was on 15 May 2013, where she was given permission to remain for employment as a domestic helper for 2 years or within 2 weeks after the termination of her employment, whichever the earlier.  Her employment was prematurely terminated and she was required to depart on or before 30 August 2013.  She did not do so, instead she overstayed illegally. She was arrested by the police on 28 April 2014.  She lodged her claim for non-refoulement protection on 9 May 2014. 

4.  The applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed or killed by her parents because she refused to marry the son of a loan shark, from whom her parents had borrowed money.  The background facts were adequately summarized in [3] – [5] of the judge’s decision (published as [2018] HKCFI 1352).

5.  By two notices of decision dated 21 April 2016 and 10 January 2017 respectively, the Director of Immigration assessed the applicant’s case based on all applicable grounds and determined the case against her.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]; and the latter covered the BOR 2 risk[4].

6.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 24 January 2017, in which the applicant elected to testify.  After hearing the applicant, the board did not accept the applicant to be a truthful witness.  The board was particularly troubled by the fact that what the applicant told the board at the hearing was significantly different from what she told the director. While the board accepted that the applicant’s parents might have borrowed money from a loan shark, it did not accept that the applicant had been kidnapped or harmed by the loan shark’s son because she refused to marry him.  The board was not satisfied that the applicant would face a real risk of being subjected to harm if she returned to Indonesia.  The board dismissed the appeal on 19 June 2017.

The judge’s decision

7.  On 31 July 2017, the applicant applied to the court for leave to apply for judicial review. According to the Form 86, the intended application for judicial review was against the decisions of both the director and the board.  While no ground for seeking reliefs was contained in the form 86, the applicant advanced the following grounds in her affirmation in support[5]:

(a) The board erred in finding that her credibility was undermined due to the variation of her accounts;

(b) The board failed to give adequate reasons in its assessment that the applicant would be free from risk of harm upon refoulement;

(c) The board failed to treat the appeal as a rehearing and failed to consider the concept of state acquiescence; and

(d) The director failed to give due weight to the country of origin information and to inquire as to whether the state had taken effective steps to combat violence and torture inflicted by loan sharks.

8.  Upon the request of the applicant, oral hearings were held on 22 November 2017 and 1 February 2018. After hearing the applicant and having considered the decisions of the director and the board, the judge refused to grant her leave to apply for judicial review.  Her reasons in refusing leave were set out in [10] – [16] of the CALL-1 form ([2018] HKCFI 1352) as follows:

“ 10. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against her and the procedure undertaken are not made out. I find no substance in the grounds of this application.

11. The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise submits the adjudicator’s finding the applicant was not credible was an error and insufficient reason was given for that finding. The adjudicator also failed to treat the appeal as a rehearing. She also failed to consider the concept of extended State acquiescence. The Director failed to consider Country of Origin information in the applicant’s favour and also failed to consider the concept of extended State acquiescence.

12. Leaving aside my view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only, the applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here. Leaving aside that view, even if this application applied to both decision-makers, there are no merits in the grounds against either.

13. There are no particulars put forward in his grounds against either the adjudicator or the Director. The applicant would have been legally represented before the Director. His legal representative would have known that the Country of Origin information was relevant. Because of the lack of particulars, I find no merit in the accusation that the Director cherry-picked at information to the detriment of the applicant.

14. Both the Director and the adjudicator of the TCAB did not need to consider the concept of extended State acquiescence. The applicant made no report to the police or any authority. This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.

15. There is no merit in the ground that the adjudicator did not treat the appeal as a rehearing. Clearly the adjudicator evaluated the applicant’s evidence again and that is how she concluded that there were serious discrepancies and inconsistencies. She was entitled to make the evaluation that she did and clearly did it based on the evidence she heard and on the evidence before her. There is no merit in the grounds against the adjudicator.

16. After considering the applicant’s grounds, I do not find any that shows there was an error of law by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.”

The appeal

9.  The applicant filed the notice of appeal on 4 July 2018.  The grounds of appeal advanced therein are as follows:

(a) The board erred in finding that the applicant’s credibility was undermined because of the variation of her accounts given to the director and to the board;

(b) The board failed to provide adequate reasons for its assessment that the applicant would be free from risk of harm upon refoulement; and

(c) The applicant was not given legal assistance after the issuance of the director’s first decision.

10.  By a letter dated 18 July 2018, the applicant gave consent that this appeal be heard before a two-judge court.

11.  Notwithstanding that she was directed to do so, the applicant failed to lodge any skeleton submissions in support of this appeal.

General principles

12.  Before we consider the merits of this appeal, we would reiterate the following general propositions regarding an appeal on non-refoulement cases:

(a) 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.

(b) 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.

(c) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489. In respect of new argument, this court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(d) Further, due to the difference in the role of the court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the board or the director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(e) 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

13.  Recently, in Re Moshsin Ali [2018] HKCA 549, the Court of Appeal ruled that the decision of the director is not a decision that is susceptible to judicial review once an appeal to the board is pursued by the claimant.  It is entirely correct for the judge to say at [12] of the CALL-1 form that the proper approach should be an application for leave to apply for judicial review against the board’s decision only.  In this appeal, we should therefore focus only on the part of the judgment that relates to the board’s decision.

14.  In the present case, the board rejected the applicant’s case on the basis of the lack of credibility of the applicant’s case.  The judge, after rigorous examination and anxious scrutiny, could not find any reasonably arguable basis to challenge the finding of the board.  In order to succeed in this appeal, the applicant must demonstrate that the judge was wrong in this finding.

15.  The first two grounds of appeal are regurgitations of the arguments advanced before the judge.  Apart from bare assertions, the applicant did not pinpoint any legal error or procedural unfairness or irrationality in these assessments. The board had given adequate reasons for its decision.  In our view, the judge was perfectly entitled to reject these grounds.

16.  The applicant had never relied on the ground of the lack of legal representation in her application for leave to apply for judicial review.  For the reasons we have explained above, this court would not generally consider new arguments that had not been canvassed in the Court of First Instance.  In any event, this ground is not reasonably arguable.  As we have repeatedly said before, the high standards of fairness do not mean that a non-refoulement claimant should have an absolute right to free legal representation at all stages of the process: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 176.

17.  The applicant failed to identify any error committed by the judge.  None of the arguments advanced in the notice of appeal merits a reversal of the judge’s decision.  Having considered the materials before us, we agree with the judge that leave should not be granted to the applicant to apply for judicial review against the board’s decision.

18.  We dismiss the appeal accordingly.