YENY RISTYOWATI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 399/2019

[2019] HKCA 1392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 399 OF 2019

(ON APPEAL FROM HCAL NO 1865 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung on 23 August 2019. By that decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.  The applicant is a 41-year-old national of Indonesia.  She arrived in Hong Kong in 2009 to work as a domestic helper.  When her employment contract was prematurely terminated on 12 January 2015, she did not leave or apply for an extension of stay.  She was arrested by the police for overstaying on 6 March 2015.  She lodged a non-refoulement claim by way of written representation on 26 May 2015.  Her claim was based on her fear that if she is to be returned to Indonesia, she will be ill-treated or killed by her husband’s elder son Nanda and her husband’s first wife Sri.  

The Director’s decision

3.  By a Notice of Decision dated 15 September 2017, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4]. 

4.  The Director considered that the low intensity and frequency of ill-treatment in the past is indicative of the unlikelihood of future risk of harm.  The alleged threats and ill treatment, even if true, arose from private dispute and there is nothing to demonstrate that the applicant has any problem because of her race, religion, nationality or membership of a particular social group or political opinion.  Besides, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected. 

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 23 May 2018.  The Board found that the applicant was evasive and unreliable in giving her evidence and that her fear of being ill-treated or killed are based entirely on her own belief or speculation.  The Board also considered that state protection and internal relocation alternatives are available.  Therefore, the appeal was rejected on 24 August 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 7 September 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board on the following grounds:  

(1)  Failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)  Failure to give reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk;

(3)  Failure to take into account the considerations of psychological strain and threats to the applicant personally;

(4)  Failure to consider her fear and severe pain and suffering intentionally inflicted by Nanda and Sri who really want to harm her if she will return to Indonesia, her life will be at risk of being subjected to torture from her husband’s family;

(5)  No sufficient basis to conclude that the applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

The judge’s decision

7.  On 23 August 2019, the judge dismissed the application for leave to apply for judicial review as the applicant failed to set out any exceptional circumstances which allow her to apply for judicial review against the Director’s decision and her grounds against the Board are not substantiated by any evidence.  

Grounds of appeal

8.  In the Notice of Appeal filed on 2 September 2019 the applicant stated the following as her grounds of appeal:

“Failure to consider my fear that I would face a real risk of harm from my enemies if I return to my country. My claim may [be] private and personal dispute, although I am fear I would face domestic violence upon return to my home country.” [sic]

9.  In her written submissions, the applicant submitted that:

(1)   The Director and the Board failed to comply with their duty to make sufficient inquiries into the country of origin conditions of her claim and adopted a passive approach in contravention of the high standards of fairness;

(2)  They failed to take into account and/or give proper weight to relevant considerations and materials which they should have and hence the decisions are illegal.  Both of them failed to give due regard to:

(a)  The fact that she would face real risk upon refoulement to her country of origin because of fear from her enemies, her life would be in danger;

(b)  The fact that she must have been placed in severe mental distress as a result she would definitely face difficulty from her enemies upon refoulement to her country of origin.

(3)  Her claims are not personal or private dispute, she fled to save her life.  The group of murderers will hunt her wherever she hides in Indonesia.  In the judgment, there are no clear directions why she would not be a subject of persecution upon refoulement, the Board and the Director failed to assess her fear, her enemies continued to look for her and she still fears to return to her country.  

Legal Principles

10.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

11.  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 Country of Origin Information (“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.

12.  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 determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

13.  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.

Analysis and disposition

14.  According to Re Moshsin Ali^[5], the applicant cannot seek judicial review against the Director’s decision once an appeal to the Board is pursued by a claimant as the decision of the Board will supersede the decision of the immigration officer.  Thus, the judge was correct in dismissing the applicant’s application regarding the decision of the Director. 

15.  The applicant’s complaints against the Board’s decision have been duly considered and rejected by the judge for they are not substantiated by any evidence.  The applicant failed to point out any errors of the judge in assessing the Board’s decision.

16.  As the applicant failed to show that the judge was wrong in dismissing her leave application, the appeal should be dismissed.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of being arbitrarily deprived of his life under article 2 of the Hong Kong Bill of Rights.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDIP”) under article 3 of the Hong Kong Bill of Rights.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[5] [2018] HKCA 549, CACV54/2018, unreported, 24 August 2018, at §45