RE NONIK INDRAWATI

CACV 229/2018

[2018] HKCA 631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 229 OF 2018

(ON APPEAL FROM HCAL 1085/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 5 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 1 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 14 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 7 April 2009 to work as a domestic helper.  She did not leave Hong Kong after her contract was terminated.  She lodged a non-refoulement claim on 1 March 2010.

3.  According to the applicant, in around 2010 her father borrowed money from Jemino.  When he could not repay the loan, he asked the applicant to marry the son of Jemino. The applicant refused and she was afraid that her family would beat her.  She decided to flee to Hong Kong.

4.  By a Notice of Decision dated 20 January 2012 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[1] only.  The applicant did not appeal against this decision.

5.  By a Notice of Decision dated 14 February 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[2], BOR 3 risk[3] and the persecution risk[4].  The Director decided against her on all of these grounds.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 3 November 2017, the Board dismissed the appeal on 1 December 2017 (“Board’s Decision”) on all applicable grounds (BOR2 risk, BOR3 risk, persecution risk and torture risk).  The Board found the applicant not to be a truthful witness, and did not accept that she had a genuine fear of being harmed.  In the light of these findings, the Board was not considered necessary to deal with the questions of availability of state protection and viability of internal relocation.

The deputy judge’s decision

7.  The applicant filed a form 86 on 15 December 2017 against the Board’s Decision and the decisions of the Director.  The form 86 contained no ground for seeking relief. 

8.  In the affirmation in support of the leave application dated 15 December 2017, the applicant advanced the following grounds for judicial review:

(1)   the Director and the Board failed to consider the risks faced by the applicant;

(2)   the Director and the Board failed to conduct sufficient inquiry of the conditions of Indonesia;

(3)   the Director and the Board cherry-picked information; and

(4)   the applicant could not be safely relocated to other parts of Indonesia.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave to apply for judicial review.  The judge gave the following reasons at paragraphs 35 to 46 of the CALL-1 form:

“35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

37. In this case, there is one special feature. The Director had considered and refused the Applicant's torture claim in 2012. The Applicant continued to stay in Hong Kong and raised a non-refoulement claim. In 2017, the Director did not consider the Applicant’s non-refoulement claim with respect to torture risk again but only in relation of the other three applicable grounds of persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). However, when the matter came before the Adjudicator, the latter chose to consider all the four applicable grounds including torture risk despite the Applicant’s appeal was only against the Director's decision in relation to the other three applicable grounds.

38. In 2012, the Director decided against the Applicant on her torture claim. There was no appeal. The torture risk issue was res judicata then. The Applicant continued to stay in Hong Kong. There had been no change of circumstances. The Applicant relied on the same allegations to raise her non-refoulement claim in June 2014. The torture risk issue was thus the same and should not be reconsidered. The Director was right to further consider the Applicant’s case only in relation to the other three applicable grounds of persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).

39. The appeal filed by the Applicant on 27 February 2017 was against the Director's decision dated 14 February 2017. She was not appealing against the Director's earlier decision rendered in January 2012 on torture risk. Actually, she could not because that 2012 decision had well been time-barred for any appeal.

40. While the Adjudicator must deal with the Applicant’s complaint on a rehearing basis, she should not reconsider the torture risk issue which was res judicata. She could only consider the Applicant's claim with respect to the three remaining applicable grounds of persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).

41. In any event, the Adjudicator found the Applicant not truthful in her claim and that the Applicant faced no real risk of any kind that warranted non-refoulement protection.

42. The Applicant’s complaints against the Director and the Adjudicator are vague. She cannot elaborate or give specifics in court.

43. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had carried out sufficient inquiry in the Applicant's case and analysed her claim carefully. There was no evidence of prejudice or cherry-picking of information. The Director had good basis to find the Applicant could relocate herself to other parts of Indonesia while the Adjudicator, in light of her finding that the Applicant's claim was incredible, was entitled to save herself from discussing internal relocation or state protection since the Applicant had no real risk that warranted non-refoulement protection.

44. None of the Applicant’s complaints against the Director or the Adjudicator was substantiated.

45. In my judgement, the Director and the Adjudicator had proper basis to find the Applicant was not entitled to non-refoulement protection. Their respective findings, conclusions and decisions were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. They had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Director and the Adjudicator gave careful consideration to the Applicant's claim. They applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

46. The Applicant’s complaints are not reasonably arguable either against the Director or the Board.  She has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant her leave for the review.”

Grounds for appeal

10.  In the Notice of Appeal dated 24 May 2018 the applicant advanced the following grounds of appeal:

(1)   failure to conduct sufficient enquiry into the relevant COI when considering persecution risk, BOR3 risk and BOR2 risk;

(2)   failure to give reasons for dismissing the claim based on BOR3 and CIDTP risks;

(3)   insufficient basis to dismiss the claim based on BOR3 and CIDTP risks;

(4)   failure to consider the psychological strain on the applicant;

(5)   failure to properly apply paragraph 2 of the UN Committees General Comment No. 2.

11.  In her skeleton submissions dated 19 August 2018, the applicant repeated the grounds in the Notice of Appeal.  She further added that the Director and Board failed to consider humanitarian reasons and only focused on monetary matters.  She also asserted that it was not safe for her to return to Indonesia.

12.  The applicant agreed by a letter of 14 June 2018 that the appeal could be heard by two judges.  We heard the appeal on 14 September 2018.

General principles

13.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 524, CAMP 524/2018 at [14]:

“14. …

(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 the 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: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(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 or for running arguments which could and should have been raised but were not raised before 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: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) 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 requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) 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: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) 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.

(6) 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. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

14.  Applying the general principles identified earlier in this judgment, we would not allow the applicant to rely on ground 5 of the Notice of Appeal, namely the ground based on UN Committees General Comment No.2, as this is a new ground at raised previously.

15.  As for grounds 1, 2 and 3 in the Notice of Appeal, we note that that the Board dismissed the applicant’s claim primarily due to her lack of credibility.  In the circumstances, it was not necessary for the Board to give detailed reasons for dismissing each of these points.  Similarly, there was no need for the Board to consider the COI in detail.  We would dismiss grounds 1-3 of the Notice of Appeal.

16.  As for ground 4, the applicant failed to show how the alleged psychological strain could have any impact on the outcome of the appeal before the Board.  We would dismiss this ground as well.

17.  There is no merit in the appeal and we dismiss the appeal accordingly.