SRINGATIN KORIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 450/2019

[2020] HKCA 299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 450 OF 2019

(ON APPEAL FROM HCAL 2589 OF 2018)

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J U D G M E N T

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

Introduction

1.  1.     This is an appeal by Ms Sringatin Korin (“the appellant”) from an order of DHCJ K.W. Lung (“the Judge”) given on 19 September 2019 dismissing her application for leave to start judicial review proceedings.  The Judge’s reasons for that order were given in the Judge’s observations set out in a document referred to as the “Form CALL-1” (“the Judge’s Decision”)[1].    

1.2.     The appellant had applied to the Judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 26 October 2018 rejecting the appellant’s claim that she should not be removed from Hong Kong and returned to her country (“claim for non-refoulement”).  The TCAB’s Decision (see [7.2] below) was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of Indonesia now aged 46.  She was married but her late husband passed away in 2000.  They have a son.  From around 1999 to around 2009, she worked as a domestic helper. Her last employment contract in Hong Kong was prematurely terminated on 4 March 2009.  She was arrested by the Immigration Department on 1 December 2015 for overstaying and working illegally, and was sentenced to a total of 6 months’ imprisonment.  She raised her claim for non - refoulement by way of written submission on 12 February 2016.  Subsequently, she submitted her non-refoulement claim form on 15 March 2018. 

The appellant’s allegations

3.  The appellant’s allegations in support of her claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what she alleged was that:

-     When the appellant was working overseas as a domestic helper, her late husband was very ill and unknown to her, twice borrowed around 10 million Indonesian Rupiah (“IDR”) from Andik, a loan shark, for his surgery.  When she returned to Indonesia on vacation in around 2002, she learnt that her late husband had passed away in 2000 but had failed to repay the loan of 20 million IDR before he died.  Andik then came to her family home to demand repayment.  She duly repaid around 20 million IDR to him.   

-     However Andik came to the appellant’s family home the next day demanding that she repay another sum of 20 million IDR as interest.  She asked for time so that she could come back to work in Hong Kong to make money.  However Andik threatened her with a knife, demanding that she marry him or else he would kill her.  She begged for an extension of time which he finally agreed to.  She did not report his threat to the police because she considered the police was corrupt and Andik was a rich man who controlled many gangsters in the locality. 

-     After the appellant came to work in Hong Kong, she received phone calls from Andik threatening to kill her and her son if she did not repay.  In 2006, he told her that the loan principal and interest had accumulated to an amount which she could not afford.  He loan shark demanded that she marry him or else he would kill her.  She changed her phone number but he went to her family home to look for her. 

-     The appellant went back to Indonesia on vacation in 2006 but she did not go back to her home and did not encounter Andik, and she has had no contact with him since.  After her vacation, she came back to Hong Kong and worked until her last contract ended in March 2009.  She was unable to find a new employer and overstayed in Hong Kong. 

-     The appellant thought there was no state protection in Indonesia as the police were corrupt.  In addition, she was unable to relocate to other places in the Indonesia as she would have no support from friends or relatives.  She has maintained regular contacts with her son and parents-in-law by telephone.  She knew from them that Andik still came to her family home to search for her whereabouts, and as she was in great fear, she could not return to her home country.

4.  The appellant’s claim was examined to see if she was at risk under any of the following risks if she returned to Indonesia:  the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.     What is often referred to as “BOR 3 risk” (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.     “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.     “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.     What is often referred to as “BOR 2 risk” (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decision

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare her claim.  After the interview, the Director rejected the appellant’s claim for reasons set out in a decision given on 20 April 2018 in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk”.

The TCAB’s Decision

7.1.     The appellant appealed to the TCAB which held a hearing at which the appellant was present with assistance from an interpreter.  The TCAB raised various questions in relation to the appellant’s case ([41] - [51]).  The appellant testified at the hearing.     

7.2.     The TCAB reviewed the evidence of the appellant in detail and dismissed the appeal (“the TCAB’s Decision”).  Essentially, the TCAB found that there were many discrepancies and inconsistencies in her evidence which led it to determine that she was not a witness of truth.  The TCAB concluded that she had fabricated her alleged fear of harm in relation to the unpaid debt, in particular the evidence of the loan was vague and confused.  The TCAB also did not accept her allegations of events regarding what happened after the loan ([52]-[56]). 

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  The appellant relied on the grounds that the TCAB was in breach of procedural fairness in terms of the following matters:

(1)     the hearing bundle was given to her shortly before the appeal hearing and without translation;

(2)     she was confused at the appeal hearing; and

(3)     the TCAB had relied upon a source of news which was not officially recognized or was simply hearsay.

The Judge’s Decision

9.  The appellant appeared at the hearing before the Judge with assistance from an interpreter.  As mentioned earlier, the Judge refused leave for the reasons set out in [12] - [18] of the Form CALL-1 ([2019] HKCFI 2279):

“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 said that her lawyer had explained the Director’s Decision to her. Her friend had explained the Board’s Decision to her.

13.     It is quite obvious that 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.

14.     I have put the Board’s findings to her and asked her if she had any comments. She said that she had no comments on them.

15.     Grounds (1) and (2) fail as they are inconsistent with what the applicant said before this Court.

16.     Grounds (3) is her opinion without any evidence in support of it.

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

CONCLUSION

18.     Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review.  Accordingly, I dismiss her application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 25 September 2019, the appellant appealed the Judge’s order to this court.  She stated her grounds as follows:

“I am not satisfied the Form CALL-1 of Torture Claims Appeal Board. My life is real in dangerous. Mr. Andik is very dangerous gangster. He threatened me through my relatives for not good consequences. Please reconsider my case.” (sic)

Legal Principles

11.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.     The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2.     When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and we will not repeat them here.

11.3.     Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing her Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if she failed to do so, she shall be deemed to have waived her right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so her appeal was considered on the papers.   

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

13.1.     The appellant failed to state any proper grounds of appeal.  She did not identify any error made by the Judge. 

13.2.     The Judge had provided reasons in detail in the Judge’s Decision with respect to refusing the appellant’s leave application for the intended judicial review.  The Judge had asked the appellant whether she had any comments about the TCAB’s Decision, but she said she had no comments.  The Judge concluded that the appellant’s claim had no reasonable prospect of success and therefore dismissed her leave application.

14.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.