RE Z

CACV 552/2018

[2019] HKCA 342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 552 OF 2018

(ON APPEAL FROM HCAL NO 202 OF 2017)

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JUDGMENT

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

1.  This is an appeal against the decision of Deputy High Court Judge Marlene Ng (as she then was) given on 8 November 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) / adjudicator of the Non-Refoulement Claims Petition Office (“the Adjudicator”) dated 21 April 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 27 April 2016 and 7 April 2017 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 23 February 2012 to work as a domestic helper.  She overstayed in Hong Kong after her contract was terminated.  She surrendered to the Immigration Department on 10 June 2014.  She lodged a non-refoulement claim on 19 July 2014. 

3.  The applicant’s claim was based on threats from two moneylenders and a former policeman.  The details of the applicant’s claim have been summarised by the judge at [7] to [21] of the CALL‑1 Form.[1]

4.  By a Notice of Decision dated 27 April 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covers the BOR 3 risk,^[2] the persecution risk,^[3] and the torture risk.^[4]

5.  By a Notice of Further Decision dated 7 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk,^[5] and decided against her.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 6 April 2017, the Board dismissed the appeal on 21 April 2017 (“Board’s Decision”).  The Board’s Decision covers all four grounds for non-refoulement protection.

7.  At [25] of the Board’s Decision, the Board found that the applicant had exaggerated the threats from the moneylenders.  The Board held at [32] that the applicant’s claim concerning the rape by a policeman was not credible.  The Board was also satisfied at [38] that internal relocation would be viable.

The Deputy Judge’s Decision

8.  The applicant filed a Form 86 on 12 May 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 12 May 2017, the applicant advanced the following grounds for judicial review which are summarised below:

(1)   procedural impropriety—failure to consider the concept of state acquiescence;

(2)   procedural impropriety—failure to conduct sufficient independent inquiry into the relevant country of origin information (“COI”) including (i) failure to conduct critical analysis of the relevant COI materials, (ii) failure to provide adequate reasons as to why COI materials in support of the Adjudicator’s conclusion ought to be preferred over COI materials contrary to the same, (iii) cherry-picking from the relevant COI materials to support the conclusion of the Adjudicator, and (iv) failure to consider Z’s fears that she had been raped by the former policeman and that she suffered attempted rape by the money collectors;

(3)   error/misdirection in law—failure to apply or properly apply [2] of the United Nations General Comment No 1 “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment—Implementation of Article 2 by State Parties” concerning the obligation of a signatory state to adopt means of redress aimed at ensuring the safety of its citizenry which were effective in any event;

(4)   error/misdirection in law—failure to consider the psychological impact of the facts raised as part of Z’s claim, including the rape and abusive language to which Z was subjected to;

(5)   irrationality/illegality—taking into account irrelevant considerations, including but not limited to the fact Z did not seek medical treatment and/or did not report to the police for her incident.

10.  After summarising the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [39] to [50] of the CALL-1 Form:

“39. In the present application for leave to apply for judicial review, the court is to consider whether the Adjudicator had made any error of law or conducted procedures that failed to comply with the high standard of fairness as explained by the Court of Final Appeal in Secretary for Security v Saktheval Prabakar. In addition, the court would also rigorously examine and anxiously scrutinise the decision-making process and the reasons by which the Adjudicator reached the Adjudicator Decision, and consider whether they satisfied the Wednesbury test.

40. The Court of Appeal had recently highlighted the role of the court in a judicial review in Re Nupur MST as follows:

‘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 the 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.’

41. In respect of the grounds of review in paragraph 4(a)-(b) above (failure to consider concept of state acquiescence and failure to conduct sufficient independent inquiry into relevant COI), it is true that the Adjudicator did not assess state acquiescence or inquire into COI materials, but his view was that it was unnecessary for him to do so (see paragraph 35 above).

42. In relation to the moneylenders and money collectors, although the Adjudicator accepted (a) Z’s mother did borrow money from the moneylenders, (b) such loan remained outstanding at the time of her death, and (c) the moneylenders approached Z’s brother about repayment of such loan around the time when the mother passed away in 2010, the Adjudicator considered Z had exaggerated that the moneylenders continued to contact her family in 2015, 2016 and 2017, and further found the risk of harm to Z from the moneylender(s) was limited to the village of her brother.

43. In respect of the Former Policeman, the Adjudicator considered the evidence before him and was not satisfied the Former Policeman raped or attempted to rape Z and/or the Former Policeman threatened to kill Z when she ran into him at the village of her uncle or her friend. The Adjudicator found Z’s claims regarding the Former Policeman as not credible and amounted to fabrication to strengthen her application for refoulement, and hence Z did not face a real risk of harm from the Former Policeman if she was refouled to Indonesia.

44. In my view, the Adjudicator meticulously considered the evidence in relation to the moneylenders, money collectors and/or the Former Policeman, and also Z’s claims on all the 4 applicable grounds. As set out in paragraphs 24-25 and 26-30 above, the Adjudicator had proper basis to find Z’s claim in relation to the moneylenders and money collectors exaggerated, and her claim in relation to the Former Policeman incredible. In my view, since the Adjudicator dismissed Z’s claim primarily due to lack of credibility and had given detailed consideration to the alleged demands/threats for repayment by the moneylenders and money collectors, and the alleged rape, attempted rape and death threat by the Former Policeman, and ultimately found such allegations did not support Z’s case, the Adjudicator was entitled to conclude Z did not have any real risk that warranted non-refoulement protection, especially when she could relocate to Jakarta, Surabaya or Bandung if so refouled. In my view, as set out in paragraphs 31-33 above, the Adjudicator had proper basis to find internal relocation to Jakarta, Surabaya or Bandung (despite some initial difficulties associated with such relocation which Z should be able to overcome) was reasonable such that Z would not face real risk of harm from the moneylender(s). In light of such findings, ie Z was not really at risk in her home country, the Adjudicator was entitled not to go on to discuss issues of human rights violations, state acquiescence, state protection and/or COI materials because Z failed to establish her case. There was no error committed by the Adjudicator in arriving at his conclusions. Instead, the Adjudicator had sufficient basis to come to his findings, conclusions and decision, which were not Wednesbury unreasonable.

45. In respect of the ground of review in paragraph 4(c) above (failure to properly apply paragraph 2 of General Comment No 2 ‘Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Implementation of Article 2 by States Parties’), such provision concerns the requirement that states parties must take action that will reinforce the prohibition against torture through legislative, administrative, judicial or other actions that must be effective in preventing it. In my view, this harked back to the above discussion in paragraphs 41-44 above, and for the reasons discussed therein, I find this intended ground of review untenable.

46. In respect of the ground of review in paragraph 4(d) above (failure to consider the psychological impact of the facts raised as part of Z’s claim including the rape and abusive language to which Z was subjected to), as explained in paragraph 43 above, the Adjudicator was not satisfied the Former Policeman raped or attempted to rape Z and/or he threatened to kill Z when she ran into him at the village of her uncle or her friend. The Adjudicator found Z’s claims regarding the Former Policeman as not credible, and hence he was entitled not to go on to discuss the psychological impact of the alleged rape, attempted rape or abusive language by the Former Policeman which he found to be fabrication on the evidence before him.

47. In any event, the Adjudicator assessed the risk of harm to Z if she returned to Indonesia was low if she were relocated to Jakarta, Surabaya or Bandung. The Adjudicator was not persuaded Z would face any real risk of ill-treatment at the hands of the moneylenders and his men or at all if she were to be refouled and relocated in Indonesia. By reason of the above matters, the Adjudicator could not be faulted for not finding for Z in relation to any psychiatric harm or mental suffering.

48. In respect of the ground of review in paragraph 4(e) above (taking into account irrelevant considerations), Z complained that the Adjudicator improperly considered the fact she did not seek medical treatment or did not report the incidents to the police. Having carefully reviewed the Adjudicator Decision, whilst I note the Adjudicator stated these matters as background facts/evidence, it did not appear he relied on these matters to dismiss Z’s non‑refoulement claim. There is no merit to this intended ground of review.

49. I am unable to find any grounds that showed there was an error in law by the Adjudicator. I see no evidence of procedural unfairness or failure to adhere to a high standard of fairness. The Adjudicator Decision was not Wednesbury unreasonable.

Conclusion

50. In my view, Z’s claim was not reasonably arguable. There was no realistic prospect of success, and I refuse leave for judicial review with no order as to costs.”

Grounds for Appeal

11.  In the Notice of Appeal dated 21 November 2018 the applicant did not give any ground for appeal.  The applicant filed an affirmation of the same day in support of her appeal which states that:

“(1) The [judge] was wrong in law in holding that there was no state acquiescence or involvement.

(2) The [judge] failed to provide detailed reason in support of her decision.”

In her skeleton submissions dated 15 February 2019, the applicant submitted that the high standard of fairness should apply to her case and that the decision maker is under a duty to act fairly.

Discussion

12.  The claim to risk of life was based on (1) fear of the moneylenders whom her late mother had borrowed from; and (2) fear of the former policemen who had attempted to rape her.

13.  For the first ground of appeal in the affirmation dated 21 November 2018, the applicant failed to give particulars for the legal error allegedly committed by the judge. 

14.  The Board has heard and questioned the applicant and found her case was (1) exaggerated and (2) incredible.  These are questions of facts with findings against the applicant by the Board which have been endorsed by the judge.  Ground (1) is therefore not a viable ground of appeal.  

15.  As for the second ground, the judge did give meticulous reasons at [39] to [50] of the CALL-1 Form.  This ground is without merit.

16.  As for the grounds stated in the skeleton submissions, the applicant only recited the relevant legal principles without showing how they can be applied to her appeal.  These grounds are thus not viable grounds of appeal.

17.  We find that the applicant’s claim has been dealt with upon the high standard of fairness.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.