MUTMAINAH SITI alias SITI MUTMAINAH v. GELEV FILIP, Esq

CACV 428/2019

[2020] HKCA 239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO 428 OF 2019

(ON APPEAL FROM HCAL 719/2018)

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J U D G M E N T

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Hon Marlene Ng J (giving judgment of the court):

I. INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“Judge”) given on 4 September 2019 refusing leave for the applicant to apply for judicial review.

II.  BACKGROUND

2.  The applicant is a national of Indonesia. She last arrived in Hong Kong on 8 May 2012 with permission to remain as a domestic helper. Her employment contract was however prematurely terminated, and she was required to depart Hong Kong within 2 weeks after the termination. She did not do so, and overstayed illegally since 5 January 2013. Over two years later, on 22 January 2015, she surrendered to the Immigration Department. She raised a claim for non-refoulment protection on 4 May 2015.

3.  The applicant’s claim was based on the fear that, if refouled, she would be harmed or killed by her ex-boyfriend because she refused to marry him. The factual background of the case was set out by the Judge in [5] – [11] of the Form CALL-1 ([2019] HKCFI 2167).

4.  The Director of Immigration (“Director”) assessed the applicant’s claim on all applicable grounds, including the risk of violation of the absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4]. By a notice of decision dated 29 March 2017[5], the Director determined the claim against the applicant.

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board / an adjudicator of the Non-refoulement Claims Petition Office (“Board”) against the Director’s decision. An oral hearing was held on 7 March 2018 at which the applicant answered questions put by the Board. By a decision given on 23 April 2018[6], the Board dismissed the applicant’s appeal/petition. Given the inconsistency of the applicant’s evidence, the Board found she was not a truthful witness and she had fabricated claims in relation to her ex-boyfriend[7]. In such circumstances, the Board rejected the factual basis of the applicant’s claim in its entirety[8]. It was concluded there was no real risk that the applicant would face if she returned to Indonesia.

III.  JUDGE’s DECISION

6.  By a Form 86 filed on 25 April 2018, the applicant sought leave to apply for judicial review against the Board’s decision. The applicant put forth her grounds for review in a document[9] attached to the Form 86, and those grounds were summarised by the Judge at [32] – [36] of the Form CALL-1 as follows:

“32. The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

33. The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information (‘COI’); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

34. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.

35. The Applicant further complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused of what happened.

36. The Applicant also accused the Director decided on BOR2 risk without screening.”

7.  The applicant repeated parts of her grounds in her affirmation[10] in support filed on the same day.

8.  The hearing was originally fixed for 12 September 2018. At the hearing, the Judge pointed out that the applicant had exhibited a wrong decision of the Board to her affirmation. The hearing was adjourned to 27 September 2018. A direction was also given for the applicant to submit the correct decision. The applicant duly complied with such direction, and attended the adjourned hearing as scheduled.

9.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review. His reasons in refusing leave were set out in [37] – [55] of the Form CALL-1 as follows (footnotes omitted):

“37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 scrutinising 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.’

39. The Applicant accused the Director decided on BOR2 risk without screening. That was not correct. The Director screened the Applicant’s case and considered her claim with respect to all the four applicable grounds in his decision dated 29 March 2017.

40. The Applicant complained there were failures by the assigned duty lawyer. However, she failed to provide specifics.

41. The Applicant complained there was a lack of or insufficient legal representation. She was represented by the Duty Lawyer Service up to the Director’s decision dated 29 March 2017.

42. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show her case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

43. The Applicant raised her language problem.

44. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.

45. In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. She was also assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.

46. The Applicant complained she received the appeal bundle only a few days before the Board hearing.

47. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. There was no evidence the rules had been breached.

48. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant’s case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

49. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

50. The Applicant said she answered all the questions honestly in the Board hearing. That means she knew what was asked and how to answer. She was not confused.

51. The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he found the Applicant was incredible and thus failed to prove she had any torture risk, persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity for the Adjudicator to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights.

52. There was no evidence the Adjudicator had cherry-picked information or taken into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

53. There was also no evidence that Adjudicator had misdirected himself in law or applied a wrong standard of proof.

54. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

55. The Applicant’s complaints are not reasonably arguable. She has no realistic prospect of success in the sought judicial review. I therefore refuse to grant her leave to apply for judicial review.”

IV.  APPEAL

10.  On 16 September 2019, the applicant filed a notice of appeal against the Judge’s decision. It was stated in the notice that:

“On 4 September [2019], the Honourable Judge Josiah Lam ordered my leave to apply for judicial review refused, but that Judge never tell any good cause for cancel my claim. In my application I write about adjudicator or immigration officer error of law, but the Judge never look at that side.

I request the Court of Final Appeal Judges [sic] to consider all my grounds.”

11.  In her written submissions lodged on 13 December 2019, the applicant asserted her ex-boyfriend was an influential leader of a terrorist group in their locality, and she would be killed by her ex-boyfriend if returned to Indonesia. The applicant claimed she gave almost all the money she earned to her ex-boyfriend, but “he kept other girl”. The applicant also submitted that “last when I saw him he and his friend going to kill me. His girlfriends also with him. He contacted with my family to ask money. But I fled to Hong Kong”. She also complained that the Board and the Director had neither investigated her claim properly nor listened to her speech, and that they had pre-judged her claim to be unmeritorious without giving consideration to her risk of being killed by her ex-boyfriend and his friends if she were to return to Indonesia.

12.  By a letter dated 16 September 2019, the applicant gave consent that this appeal could be dealt with by a 2-member court.

13.  This appeal was scheduled to be heard on 4 February 2020, but was adjourned due to the public health situation at the time. The hearing of this appeal was subsequently re-fixed twice, and we heard the appeal on 16 April 2020.

V.  GENERAL PRINCIPLES

14.  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 scrutinising 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, 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 before, and rejected, by 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.

VI.  DISCUSSION

15.  In the present case, the Board rejected the applicant’s non-refoulement claim based on its adverse finding on her credibility. As explained above, the assessment of evidence is within the province of the Board. The Court will not intervene with such finding unless it contained errors on public law grounds. Having considered the case with rigorous examination and anxious scrutiny, the Judge did not find any of such ground.

16.  The ground of appeal stated in the notice of appeal has no merits. It is clear from the Judge’s decision that he has provided detailed reasons for his conclusion. There is no basis to suggest that the Judge gave no “good cause” in refusing the applicant’s leave to apply for judicial review.

17.  Nor do the matters stated in the applicant’s written submissions have any merits. We note that in her notice of appeal/petition to the Board, the applicant stated she had been told her ex-boyfriend had a “gang”[11]. During the hearing, the Board enquired this assertion with the applicant in detail. The applicant replied by talking about her boyfriend’s naughtiness at school, but did not describe him as a gangster[12], let alone as a “leader of terrorist” (sic). There is no basis for us to accept this new assertion of the applicant.

18.  The remaining complaints in the written submissions are general assertions without particulars in support. In any event, the matters stated in the written submissions had not been advanced before the Judge. As explained above, this Court will not entertain new points that are fact-and-evidence sensitive and had not been canvassed in the Court of First Instance. There is no merit in the applicant’s submissions.

19.  In this appeal, the applicant fails to pinpoint any viable ground for reversing the decision of Judge. We do not see any such ground either. Having considered the materials available before us, we agree with the Judge that leave to apply for judicial review should be refused.

20.  For these reasons, we dismiss the appeal.