RE TINA KURNIASIH

CACV 360/2020

[2021] HKCA 203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 360 OF 2020

(ON APPEAL FROM HCAL NO. 475 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 3 August 2020 in HCAL 475/2018 refusing leave to the applicant to apply for judicial review against the decision of Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 19 March 2018 in which the Board confirmed the decision made by the Director of Immigration (“the Director”) on 15 March 2017.

Background

2.  The Applicant is a national of Indonesia who last arrived in Hong Kong in August 2014 with permission to work as a foreign domestic helper up to the expiration of her employment contract on 24 June 2016 or within 14 days of its early termination.  When her contract was prematurely terminated on 31 May 2016, the applicant did not depart and overstayed.  She was arrested by the police on 12 September 2016 and was then referred to the Immigration Department for investigation.  She raised a non-refoulement claim by way of a written representation dated 25 November 2016 on the basis that if she were to return to Indonesia she would be harmed or killed by her creditor for failing to repay a loan.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1682. 

3.  By the Notice of Decision dated 15 March 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.  The applicant appealed to the Board.  The appeal was heard on 22 November 2017 and by the Board’s decision made on 19 March 2018, the appeal was dismissed.  The Board found the applicant’s evidence exceptionally vague, internally incoherent, evasive and entirely different in relation to the core and material elements from that put forward to the Director in her initial application, and when these difficulties were put to her, she could not provide any explanation.  All these had fatally undermined her credibility and the Board reached the undoubted conclusion that she was not a witness of truth and that no credence whatsoever could be attached to her claim. For the aforesaid reasons, her claim for non-refoulement protection failed on all applicable grounds.

5.  On 23 March 2018, the applicant filed her Form 86 to apply for leave for judicial review against the decisions of the Director and the Board.  She did not provide any grounds for seeking relief and in her supporting affirmation of the same date, she merely repeated her claim of fear of harm from her creditor without putting forward any valid or proper ground to support her intended application.

The Judge’s decision

6.  The applicant did not request for an oral hearing in the Form 86 and the application was disposed on paper.  On 3 August 2020, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [17] – [20]:

“17.  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.

18.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 34 of its decision with the benefit of hearing her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

19.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s 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.

20.  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 Appeal

7.  On 12 August 2020, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated ground of appeal is as follows:

“I am not satisfied with the decision of court and other authorities because I face my life risk in my home land in Indonesia so I fear to go back my country. I do not know English and court procedure so I should seek help to someone because of my language handicap.”

8.  In her written submissions, she provided further grounds as follows:

(1)  She did not agree with the Director’s and the Board’s decisions and she did not think her case was determined fairly.

(2)  Without knowing thoroughly how her case was determined, it is not easy for her to appeal that decision. She believes there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claims.

(3)  First and foremost, she was never provided with proper legal and language assistance.  With her limitations in terms of resources, funding and language capability, it has been burdensome for a non-refoulement claimant like her to appeal against the decision.  The determinations of the Board had never been read to her in her language and she believes such failure in providing proper assistance to non-refoulement claimants is procedurally unfair.

(4)  She urges the authorities to take into account the real procedural unfairness throughout the case and to put aside the public policies of trying to dispose of non-refoulement claims as quickly as possible.

(5)  She was not informed fully of her rights and was not given the opportunity to be heard with assistance from the beginning of her case.

(6)  The discriminating act of authorities in quick disposal of non-refoulement cases is unacceptable and detrimental to the spirit of the judicial system. 

9.  We heard the appeal on 22 February 2021. 

General Principles

10.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [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 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.

(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 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.

(3)  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). 

Discussion

11.  In our judgment, the grounds of appeal as set out the Notice of Appeal and the written submissions were general assertions and unsubstantiated allegations which cannot be valid grounds of appeal.

12.  Regarding her complaint of lack of language assistance for her appeal before the Board, we note that the applicant was assisted by a Bahasa Indonesia interpreter at the appeal hearing before the Board.  Moreover, it is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as she may desire: Re Usman Muhammad [2019] HKCA 1404 at [18] and Re Gurung Sagar [2019] HKCA 658 at [12].  Furthermore, documents filed in court in support of the appeal including the written submissions lodged by the applicant were written in English.  This indicates either the applicant is conversant with the English language or that she has access to language assistance if needed.  Her complaints were devoid of merit.

13.  After a careful review of the Board’s decision and the Judge’s decision, we agree with the Judge’s decision that Board’s decision is free from error of law or procedural fairness.  There was no failure on its part to apply high standard of fairness in its consideration and assessment of the applicant’s claim.  In our judgment, none of the grounds complaining against procedural unfairness has merit.

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