CUCIYATI BT RASMAN TURIDAH v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 466/2019

[2020] HKCA 418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 466 OF 2019

(ON APPEAL FROM HCAL 2941/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“the Judge”) on 27 September 2019 in HCAL 2941/2018 refusing leave to the applicant to apply for judicial review.

2.  The appeal hearing was initially fixed for 3 March 2020.  Due to the public health risk arising from the COVID-19 pandemic and the general adjournment of proceedings, the appeal hearing was adjourned to 18 May 2020.   Pursuant to the directions of the Registrar of Civil Appeals given on 24 October 2019, the applicant shall lodge with the court 3 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 20 April 2020.  Despite the letter sent by the court on 8 April 2020 reminding the applicant of the aforesaid directions, the applicant failed to lodge his written submission.  The Registrar further directed that in the event of the applicant’s failure to lodge written submission, the applicant shall be deemed to waive her right to have an oral hearing and this Court shall proceed to determine the appeal on paper only.

Background

3.  The applicant is a national of Indonesia. She came to Hong Kong as a domestic helper in November 2015 and was permitted to stay until 16 September 2016.  Her employment contract was terminated prematurely. She overstayed and was arrested by police on 19 May 2017. She was referred to the Immigration Department for further investigation. On 22 May 2017, she lodged a non-refoulement claim on the basis if she were to return to Indonesia, she would be harmed or even killed by her abusive husband due to family dispute.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 2402.  We shall not repeat the same here.

4.  By the Notice of Decision dated 4 April 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk. 

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 17 August 2018, the Board dismissed the appeal on 31 October 2018.  The Board found the applicant not to be a truthful witness, and that she had exaggerated her claims of harm on the basis of a loan and to some extent her husband.  Having admitted at the hearing that her creditors had seized her land and property which cancelled out the loan, the Board found the applicant to have nothing to fear from any creditor.  The relevant COI also showed that reasonable state protection was available to her from domestic violence, and that the Indonesian government had made efforts and allocated significant resources to improving the laws and process which dealt with violence against women.  The Board considered that there was no real risk of harm to the applicant if refouled and in any event, internal relocation was a viable and reasonable option.  For the aforesaid reasons, the Board rejected her non-refoulement claim on all applicable grounds.

The Judge’s decision

6.  On 21 December 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decision of the Board. In her supporting affirmation, she advanced the following grounds of challenge:

(1)  The hearing bundle was only given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case.

(2)  The contents of the hearing bundle were in English which she could not understand and she was unable to obtain any interpretation service.

(3)  She was confused at the appeal hearing.

(4)  The Adjudicator had relied upon hearsay information and outdated COI.

(5)  The applicant was not legally represented at the Board hearing, which was in breach of procedural fairness.

(6)  BOR 2 risk was assessed without screening.

7.  The Judge heard the application on 22 May 2019 and by the CALL-1 Form dated 27 September 2019, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [12] – [21] of the CALL-1 Form:

“DISCUSSION

The Board’s Decision

12.  The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. The interpreter of the Legal Aid Department has explained the hearing bundle to her.  Her friend had explained to her the Board’s Decision.

13.  I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

14.  It is quite obvious that, apart from some fundamental facts such as her nationality, the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

15.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

16.  The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.”

17.  Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

18.  Grounds (4) and (5) are her opinions without any evidence in support of them. They fail.

19.  Ground (6) fails in light of the Court of Appeal’s decision.

20.  Ground (7) fails as BOR 2 risk was assessed in one go.

21.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

The Appeal

8.  In the Notice of Appeal filed on 3 October 2019, the applicant set out the background of her case.  She then mentioned Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the definition of torture.  She claimed that she is currently seeking legal assistance and reserves the right to submit additional document and /or amended ground of appeal.  She contended that high standards of fairness should be maintained as mentioned in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and that she did not receive legal assistance from the Duty Lawyer Service after the Director’s decision was issued.

Discussion

9.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court would only examine the decision of the judge in light of the grounds advanced by the applicant and would only reverse the decision if the applicant 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. 

10.  Here, the grounds of appeal advanced by the applicant did not identify any errors in the Judge’s decision and are not viable grounds of appeal.  Further, the ground pertaining to the lack of legal assistance was a mere regurgitation of arguments at the lower court.  The argument was fully canvassed and duly rejected by the Judge at [16] of the CALL-1 form.  

11.  Having considered the material before us, we find the Judge’s observations to be justified.  We do not see any legal error of law or procedure in the proceedings before the Board and the Director.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  We agree with the Judge that leave to apply for judicial review should be refused.

12.  For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.