RE SUDIMAH

CACV 243/2019

[2019] HKCA 1030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 243 OF 2019

(ON APPEAL FROM HCAL NO 590 OF 2018)

___________________________

___________________________

________________

J U D G M E N T

________________

Hon Bharwaney J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 24 May 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 28 March 2018 upholding the decision of the Director of Immigration (“the Director”) refusing to allow the applicant to reopen her torture claim under section 37ZG of the Immigration Ordinance (Cap 115).

Background

2.  The applicant is a national of Indonesia.  She worked in Hong Kong as a domestic helper between 2003 and 2006.  She last arrived in Hong Kong on 4 August 2006 and was allowed to remain as a visitor for a month until 3 September 2006.  She did not depart upon the expiry of her permission to remain, and overstayed.  She was arrested by the police on 29 June 2009.  She lodged a torture claim on 28 January 2010.

3.  The factual background since the lodging of her torture claim to the Board’s decision was set out by the Judge in [7] – [27] of the Form CALL- 1 ([2019] HKCFI 603). For the purpose of this appeal, it suffices to highlight the following salient points:

(a) By a notice of determination dated 19 July 2012, the applicant’s torture claim was rejected by the Director of Immigration (“the Director”) on the basis that she had neither returned a completed questionnaire nor provided any evidence in support of her claim.

(b) The applicant did not lodge any appeal against the said determination of the Director.  However, over 4 years later, by a letter dated 19 August 2016, the applicant expressed to the Director her intention to make a subsequent claim for non-refoulement protection on all applicable grounds[1] under the unified screening mechanism (“USM”).

(c) On 13 September 2016, the Director refused the applicant’s request to make a subsequent claim on the basis that the applicant failed to provide sufficient evidence demonstrating a significant change of circumstances since the rejection of her torture claim.

(d) The applicant lodged a written representation on 30 September 2016.  In light of that, the Director decided to arrange a briefing session for the applicant.

(e) The applicant attended the briefing session on 28 November 2016.  During the session, the Director gave the applicant a blank Supplementary Claim Form (“the SCF”) to be completed and returned within 28 days.  A screening interview was also fixed to be held on 6 February 2017.

(f) Although the time for returning the SCF was extended to 16 January 2017, the applicant failed to return the completed form by the deadline.  By a notice of deemed withdrawal dated 18 January 2017, the applicant was informed that her application for non-refoulement protection was treated as having been withdrawn.

(g) The applicant wrote to the Director on 23 January 2017 stating that she wanted to reopen her case.

(h) The Director asked the applicant to provide information and evidence by 3 February 2017 in support of her application to reopen her case.

(i) The applicant explained in her letter to the Director dated 7 February 2017 that she lost her mobile phone and could not receive any telephone call.

(j) By a notice of decision dated 8 February 2017, the Director decided not to re-open her non-refoulement claim on the ground that the applicant failed to provide sufficient evidence in writing to satisfy the Director that she failed to complete the SFC due to circumstances beyond her control.

4.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 8 February 2018.  The Board found that the applicant had all along been aware of the deadline in returning the SFC.  While the Board was prepared to accept that the applicant lost her mobile phone, it was found to be inexplicable why she did not contact the Duty Lawyer Service or the Director to ascertain what she was required to do.  The applicant could not explain clearly how the loss of her mobile phone would prevent her from completing and returning the SCF.  The Board did not accept that the applicant’s lack of language ability was a reasonable excuse.  The applicant’s appeal/petition was dismissed on 28 March 2018.

The judge’s decison

5.  On 10 April 2018, the applicant applied to the court for leave to apply for judicial review.  In her supporting affirmation filed on the same day, the applicant sought to rely on 4 grounds for seeking reliefs, and the grounds were summarized in [28] of the Form CALL-1.  The first three grounds related to the Decision of the Director.  So far as Ground 4 is concerned, the applicant complained that the Board failed to provide her with sufficient opportunity to present her claim.

6.  Upon the request of the applicant, an oral hearing was held on 30 January 2019.

7.  As mentioned earlier, the judge refused the applicant’s application for leave to apply for judicial review.  The reasons in refusing leave were set out in [29] – [33] of the CALL-1 Form as follows:

“29. The complaints of the applicant under Grounds (1) and (2) are clearly without basis or merits given what appear to me ample time and opportunities whether under the statutory provisions or at the immigration officer’s discretion for her to return the completed SCF and to re-open her claim by the Department in the circumstances as described in paragraphs 15–26 above, and I do not see how it can reasonably be argued that there was any procedural unfairness or failure to apply high standards of fairness in the Director’s decision either to treat her claim as withdrawn or to refuse to re-open her claim.

30. The same can be said about her Ground (3) as there is no provision for the Director to conduct any interview prior to the return of a completed torture claim form, and even if there were it cannot in my view be reasonably argued that the Director was wrong in law or procedurally unfair not to conduct any interview before receiving her SCF, as to do otherwise would simply be impractical, inefficient, and not proportionate to costs in terms of public law administrations.

31. As for Ground (4), it is clear from the reasons given in the Board’s decision stated above that the applicant was again given every opportunity to explain her failure to comply with the requirement of returning her SCF within the stipulated time, and that the adjudicator was in my judgment entirely correct not to accept the applicant’s reasons for her failure to return the completed SCF as required due to circumstances beyond her control. As a matter of fact, the applicant never even attempted to produce or submit any SCF in the process of her appeal before the Board or at her oral hearing before the adjudicator.

32. 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.

33.    For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

The appeal

8.  On 3 June 2019, the applicant filed a notice of appeal.  The applicant advanced the following grounds of appeal in the notice.

“(1) Failure to give reasons for assessment of lack of BOR 3 risk /or insufficient basis to support conclusion of lack of BOR 3 risk.

(2)     Failing to take into account the considerations of psychological strain and threats to me, resulting from repeated threats to me in person by my enemies.”

9.  In her skeleton submission lodged on 17 July 2019, the applicant further stated that:

(a) The Board and the Director failed to make sufficient inquiry into the country of origin conditions of her claim;

(b) The decision makers failed to take into account relevant considerations and took into account irrelevant considerations;

(c) The Board and the Director failed to give her proper opportunities to present her claim;

(d) She suffered from severe mental distress; and

(e) The Board and the Director failed to assess her fear of harm upon refouled.

10.  By a letter dated 3 June 2019, the applicant gave consent that this appeal might be dealt with by a 2-judge court.

11.  We heard the appeal on 3 September 2019.

General principles

12.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.

(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) 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 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.

(4) 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 was a fresh application for judicial review.

Discussion

13.  The Director cannot reopen a torture claim unless the claimant provides sufficient evidence in writing to satisfy the Director that, due to circumstances beyond the claimant’s control, the claimant could not return a completed torture claim form as required under the statute: see s 37ZG(3) of the Immigration Ordinance (Cap 115).

14.  This Court (Cheung CJHC, as Cheung PJ then was, and Lam VP) held that, although the statutory provisions are applicable to torture claim only, the same constraints are also applicable for other non-refoulement claims under the administrative provisions governing the USM: see Ram Chandler v Director of Immigration [2018] HKCA 585 at [9].

15.  Accordingly, the crux of this application is whether the applicant satisfied the statutory conditions, such that the Director should reopen her claim notwithstanding the failure to return the completed SCF within the prescribed time.  For the reasons we mentioned in [4] above, the Board answered in the negative.  As indicated in s 37ZG, this decision is within the sole province of the Director (and the Board).  The court will not intervene unless the decision contains errors on grounds recognized under the public law.  The Judge, having considered the case with rigorous examination and anxious scrutiny, could not find flaws in the Board’s decision.

16.  The grounds of appeal put forth by the applicant in her notice of appeal and skeleton submissions are clearly misplaced.  Nothing there constitutes a viable ground to reverse the Judge’s decision.  We further endorse the Judge’s observation in [31] of the Form CALL-1 that the applicant had never produced a completed SFC before the Board.  Not even in her leave application or in this appeal has she done so.

17.  In any event, the said grounds are devoid of merits.  The Director’s decision is not susceptible to judicial review once an appeal to the Board is pursued by a claimant: see Re Moshsin Ali [2018] HKCA 549 at [45].

18.  We do not accept the applicant’s contention that she did not have sufficient opportunity to present her case.

19.  Given the facts of this case, it was not necessary for the Board to evaluate her risks of harm.  Hence, there is no basis to criticize the Board for failing to consider the applicant’s BOR 3 risk, to make sufficient inquiry of her country of origin, or to evaluate her alleged psychological distress.

20.  Furthermore, none of the said arguments (other than the one concerning the sufficient opportunity to present her case) has been canvassed before the judge in the proceedings below.  As we have explained, this Court will not entertain arguments that have not been canvassed in the Court of First Instance and that are fact-and-evidence sensitive.

21.  For these reasons, we dismiss the appeal.