RE ANA IRMAWATI

CACV 518/2020

[2021] HKCA 647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 518 OF 2020

(ON APPEAL FROM HCAL NO. 864 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 C P Pang (“the Judge”) dated 14 September 2020 in HCAL 864/2018 refusing leave to the applicant to apply for judicial review of the decision of Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 9 March 2018 in which the Board confirmed the decision made by the Director of Immigration (“the Director”) on 30 October 2017.

Background

2.  The applicant is a national of Indonesia.  She arrived in Hong Kong in August 2010 to work as a domestic helper.  Her employment contract was terminated in January 2011 and she was allowed to remain as a visitor until 13 April 2011.  She overstayed unlawfully until she was arrested by the police on 12 October 2013.  On 3 March 2014 she lodged a non-refoulement claim on the basis that if she were to return to Indonesia, she would be harmed or even killed by a creditor and her parents would force her to marry the creditor because they were unable to settle their loan with the creditor.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 2300. 

3.  By the Notice of Decision dated 30 October 2017, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.  The applicant appealed the Director’s decision to the Board.  The appeal was heard on 27 February 2018 and by its decision of 9 March 2018, the Board dismissed the appeal.  Although the Board had doubts and queries on the applicant’s case, the Board gave her the benefit of doubts and accepted that her parents remained indebted to the creditor and that the creditor wanted to marry the applicant and would seek to take retribution against her for refusing to marry him.  However, the Board only found a remote or speculative risk that the applicant would be at risk of harm if she returns to Indonesia.  Further, the dispute was private and personal in nature without state involvement and internal relocation would be a reasonable option.  Having considered the totality of the evidence, the Board concluded that the applicant would not be at any real risk of proscribed harm if refouled and her non-refoulement protection claim was rejected on all applicable grounds.[5]

5.  On 18 May 2018, the applicant filed a Form 86 for leave to apply for judicial review of the decisions of the Director and the Board.  She did not provide any ground of relief in the Form nor in her supporting affirmation and she did not request for an oral hearing.  By a letter dated 4 June 2020, the court invited the applicant to submit information including any submissions that she would like to make.  However the applicant has not made any response or submission to the court.  

The Judge’s decision

6.  The Judge disposed of the application on paper and by the CALL-1 Form dated 14 September 2020, the Judge refused 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 [11] – [21] for his refusal to grant leave:

“11.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12.  When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

13.  The applicant did not set out any grounds for judicial review in her Form 86 and affirmation.  Nevertheless, the court is under a duty to examine the decisions of both the Director and the Board with rigorous examination and anxious scrutiny to find out if there are any error of law, irrational findings, or procedural unfairness.

14.  In the present case, the Board in fact took a view on facts most favourable to the applicant and did not take issue with her asserted primary facts.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Having taken into account all the circumstances relied upon by her, it rejected the applicant’s claim based on its assessment of the risk of harm and finding on the viability of internal relocation.

15.  As explained above assessment of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

16.  The Form 86 and affirmation did not set out any ground to point to any procedural irregularity, unfairness or unreasonableness of the Board.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  The findings on credibility of the applicant by the Board are most favourable to the applicant.  She overstayed unlawfully since 14 April 2011 and arrested by the police after 2 years and 6 months on 12 October 2013.  She submitted her claim for non-refoulement protection on 3 March 2014.  The applicant’s conduct in Hong Kong by her delay in lodging the claim for protection could have been viewed adversely on her credibility and was inconsistent with someone in genuine fear for her life and safety.

18.  Even on her own account, the alleged past ill-treatment was of low intensity and frequency.  It came nowhere near the level of severity required by law to constitute torture or CIDTP.  There is no substantial ground for believing that the applicant would be at real risk of any type of proscribed harm, if refouled.

19.  The Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  It gave the applicant a reasonable opportunity to state her case and took a view on facts which are most favourable and fair to the applicant.  There cannot be any criticism of its determination which is eminently reasonable.

20.  The Director’s assessment of the risk of harm, availability of state protection and internal relocation cannot be faulted.

21.  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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.”

The Appeal

7.  On 28 September 2020 , the applicant filed her Notice of Appeal against the Judge’s decision.  She did not provide any ground of appeal save for saying that she would like “to reject and review the Board’s decision as it disregarded her dangerous situation”.

8.  In her skeleton argument, she provided the following grounds of appeal:

(1)  She would face danger if refouled because the current legal system and the police could not protect her.  Her problem might begin as a private issue but in fact it is an institutional problem since the police itself fails to uphold human rights (Httos://www.protectioninternational.org/en/news/2020-dark-page-history-human-rights-indonesia).

(2)  The Judge doubted her credibility because she did not right away apply for non-refoulement protection but only after her arrest by the police.  However, she urged the Court to note that she is a foreigner and has no idea how she can apply for non-refoulement protection or that there is such a system that can help to protect her.

(3)  The Board failed to look into her case based on Indonesia context and ignored her problems in Indonesia and only selectively quoted sources that fitted their purposes.

(4)  Based on the aforesaid grounds, she urged the Court to grant her leave to apply for judicial review.

General Principles

9.  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

10.  The grounds of appeal set out in the skeleton argument did not pinpoint any error of law nor raise any discernible grounds for us to disturb the Judge’s decision and they are not viable ground of appeal.

11.  The allegations against the Board’s decision were vague and without basis and particulars.  As has been said repeatedly, general assertions would not be enough to give rise to viable ground of appeal in a matter of this nature: Re Mizan Sikder [2019] HKCA 20; Re Imbuh Karina Binti Yamroni [2019] HKCA 950.  Upon careful review of the Board’s decision, we are satisfied that the Board had duly considered the applicant’s case and had properly analyzed and assessed her case and it is perfectly open for it to reach its findings and conclusion as it did.  We do not see any error of law or procedural unfairness or irregularities in the Board’s decision that would warrant the Court’s intervention.

12.  We are also satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny and there is no merit in the applicant’s case.

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