RE SRI HASTUTIK

CACV 467/2020

[2021] HKCA 264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 467 OF 2020

(ON APPEAL FROM HCAL NO. 897 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 7 September 2020^[1] refusing her leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 7 May 2018 dismissing her appeal against the decisions of the Director of Immigration (“the Director”) of 28 May 2015 and 27 October 2017 rejecting her non‑refoulement protection claim.  The appeal is dealt with on paper without a hearing due to the non-compliance with the direction on the lodging of a skeleton argument as mentioned below. 

The applicant’s non-refoulement claim

2.  The applicant is a national of Indonesia of 41 years old.  She was last permitted to remain in Hong Kong to work as a domestic helper until 17 August 2012 or 14 days from the early termination of her employment contract.  Her employment was terminated on 17 September 2011.  She overstayed and was arrested by the police on 16 June 2012.  She raised a torture claim which was rejected by the Director on 22 February 2013.  Her appeal to the Board was dismissed on 25 April 2014. On 14 April 2015, the applicant lodged a supplementary claim to apply for non‑refoulement claim upon the unified screening mechanism.

3.  The applicant’s claim was set out in detail in the Director’s first decision at [9] and the Board’s decision at [3] and summarized by the Judge at [2] to [4] of Form CALL-1.  The applicant’s claim is based on her fear of being harmed or killed by (a) her brother for not helping him to repay his debt, and (b) his brother’s creditor for not repaying her brother’s loan. 

4.  In gist, the applicant said she learnt in 2010 that her brother had borrowed a loan from a neighbour, who was a loan shark, to pay for their father’s hospital expenses.  She helped to repay the loan by making monthly remittances out of her income as a domestic worker.  When she returned home for holiday, her brother told her he would leave home with his girlfriend, and the applicant had to take up the responsibility of repaying the debt.  When she objected, he threatened to beat her.  After her employment was terminated in 2011, her family told her that the creditor came to look for her and threatened to kill her if she failed to repay her brother’s loan. 

The Director’s decision

5.  By two decisions dated 28 May 2015 and 27 October 2017, the Director rejected the applicant’s non-refoulement claim.  The first decision covered the BOR 3 risk^[2] and persecution risk^[3] grounds, but not the torture risk^[4] ground in view of the previous rejection of her torture claim.  The Director’s further decision concerned the BOR 2 risk^[5] ground. 

6.  The Director considered there was no substantial grounds for believing that the applicant’s brother or his creditor would harm her or that her claimed fear was real or foreseeable, having regard to the fact that there was no past incident of ill-treatment from either of them and that the loan had nothing to do with her.  The Director also considered that the applicant’s problem was a private dispute and did not involve any state official or authority.  The Director further found that any risk of harm would be lowered or negated by the availability of state protection and the viability of internal relocation.  The Director concluded that the applicant failed to establish his entitlement to any of the applicable grounds.          

The Board’s decision

7.  The applicant appealed the Director’s first decision to the Board.  The Board heard the appeal on 15 February 2018.  By then the Director had given his further decision.  The Board’s appeal therefore covered all the four applicable grounds.  The applicant gave evidence at the oral hearing and had answered questions from the Board. 

8.  By its decision dated 7 May 2018, the Board dismissed the appeal.  The Board noted that admittedly the applicant had no contact with her brother and the creditor since 2011. 

9.  The Board held that given the long lapse of time, it was unlikely that the creditor or her brother would still have any interest in pursuing the applicant.  The Board had regard to the country of origin information and took the view that state protection and internal relocation alternatives were reasonably available.  The Board was further of the view that there were significant concerns regarding the credibility and reliability of the applicant’s case and her assertion of being in fear.  The Board concluded that the applicant failed to establish her claim under any of the applicable grounds.        

The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 23 May 2018 to seek leave to apply for judicial review against the decision of the Board.  Neither the Form 86 nor the affirmation set out any grounds for seeking relief.

The Judge’s decision

11.  The applicant did not request an oral hearing.  The Judge dealt with the application on the papers.  By his decision dated 7 September 2020, the Judge held that the intended judicial review has no reasonable prospect of success and refused to give leave to apply for judicial review.  His reasons were set out at [11] to [13] of the Form CALL-1 as follows:

“11. 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.

12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim 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.

13.  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.”

The grounds of appeal

12.  On 14 September 2020, the applicant filed a Notice of Appeal to appeal the decision of the Judge.  Her grounds of appeal can be summarized as follows:

(1)  The Director failed to appreciate or give proper weight to the presence of state acquiescence in her case leading to the unfair dismissal of her claim.

(2)  The Board and the Court failed to take this argument into consideration.

(3)  The Board failed to make sufficient enquiry before finalizing the determination.

(4)  The Board stated that she failed to adduce credible evidence to prove material elements of her claim.  It is to be noted that as a torture claimant she has no or limited resources in bringing the evidence before the Board.

(5)  The Board failed to give her sufficient chance to arrange relevant evidence for her claim and her appeal.

(6)  The Director exhibited an unfair attitude.  In fact, corruption and incompetency of the administration in her country is still serious, which has been documented in the reports of various human rights organization.   

Non-compliance with order to lodge skeleton argument

13.  Directions were given by the Registrar of Civil Appeals on 2 January 2021 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.  The directions were communicated to the applicant by the court’s letter dated 6 January 2021.

14.  The appeal was scheduled to be heard on 8 March 2021.  The Notice of Hearing dated 19 January 2021 reminded the applicant to lodge his skeleton argument by 8 February 2021 and further warned that should she failed to do so she would be deemed to waive her right to have an oral hearing and the hearing date would be vacated with the hearing being determined on paper.

15.  The applicant failed to lodge a skeleton argument on or before 8 February 2021.  The hearing date was accordingly vacated.  By letter dated 16 February 2021, the court informed the applicant that the hearing date of 8 March 2021 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

16.  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.

17.  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. Assessment of evidence and country of origin information materials and risks of harm, availability of state protection and viability of internal relocation are primarily within the province of the primary decision makers.  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 and the process by which the decision was made.

18.  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. 

Our reasons for decision

19.  We are of the view that the grounds of appeal put forward by the applicant in the Notice of Appeal are not viable grounds to reverse the Judge’s decision. 

20.  Firstly, the applicant did not put forward any ground to support her application for leave to bring judicial review.  The complaints she now raises against the Director’s and the Board’s decisions were never raised before the Judge, and there is no explanation for this.  Generally speaking the Court of Appeal will not entertain grounds of appeal or arguments that have not been argued in the court below.

21.  Secondly, on the applicant’s case, there is nothing to show there is involvement of, let alone acquiescence by, any state authority or official. The complaint that the Director and the Board failed to consider or attach weight to state acquiescence in assessing the applicant’s claim has no factual and evidential basis and is simply unarguable. 

22.  Thirdly, the applicant has given no particulars or details for her complaint that the Board failed to make sufficient enquiry.  She has not identified what are aspects or matters that the Board should have, but has not, explored or examined.  This ground of appeal has no merits.

23.  Fourthly, although the Board expressed doubts over the credibility and reliability of the applicant’s case, it was not because it considered the applicant failed to adduce material evidence.  The Board’s main reason (as set out in [22] to [25] of its decision) was she had not sought help nor raised a torture claim after she returned to Hong Kong and after her employment was terminated, and she only sought non-refoulement protection after being arrested by the police for overstaying in Hong Kong.  These are incontrovertible facts. The Board had put them to the applicant at the oral hearing and she had responded to them.  The Board, as it was entitled to, did not find her explanation satisfactory.  In these circumstances, the applicant’s complaint that the Board did not allow her an opportunity to adduce relevant evidence is both misplaced and unarguable.      

24.  Fifthly, with regard to the argument that the government administration in the applicant’s home country is corrupt and incompetent, as of the administration, as pointed out above, assessment or risks of harm and country of origin condition and examination of country of origin materials are within the province of the primary decision makers and are not matters for the Judge.

25.  We have examined the decisions of the Director and the Board.  We agree with the Judge that there are no grounds for intervention by the court, and the applicant’s intended judicial review has no prospect of success

26.  For the above reasons, there is no merit in the applicant’s appeal.  We therefore dismiss the appeal. 

[1] [2020] HKCFI 2191

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] 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.

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

[5] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.