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CACV 589 /2019
[2020] HKCA 442
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 589 OF 2019
(ON APPEAL FROM HCAL NO 663 OF 2019)
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BETWEEN
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Zoraydah |
1st Applicant |
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Rahman Arinda Zahra |
2nd Applicant |
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Rahman Hasif Ramadani |
3rd Applicant |
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and |
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Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
________________________
| Before: |
Hon Kwan VP and Cheung JA in Court |
| Date of Judgment: |
9 June 2020 |
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J U D G M E N T
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Hon Kwan VP (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge K W Lung on 6 December 2019[1] refusing leave to the 1st to 3rd applicants to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims. The appeal is dealt with on paper without a hearing due to the non-compliance with the directions of the Registrar of Civil Appeals for the lodging of a skeleton argument as mentioned below.
2. The 1st applicant is a national of Indonesia of 34 years old. She came to Hong Kong to work as a domestic helper on 20 May 2007. Her employment contract was terminated prematurely on 23 November 2007 and she lodged a refugee claim on 7 December 2007 with the Hong Kong Sub-office of the United Nations High Commissioner for Refugees (“UNHCR”). She overstayed from 8 December 2007 and surrendered to the Immigration Department on 10 December 2007. She gave birth to the 2nd applicant on 20 January 2008 and to 3rd applicant on 26 August 2009. On 1 February 2011, removal orders were issued against the three applicants and an appeal against the removal orders was dismissed on 28 February 2011. The UNHCR closed the refugee claim lodged by the applicant for herself and her children on 28 April 2011.
The Director’s decisions
3. On 8 June 2011, the 1st applicant lodged a torture claim for herself and her two children. Their torture claim was refused by the Director of Immigration (“the Director”) on 26 March 2012. The appeal against the Director’s refusal of the torture claim was rejected by the Board on 23 April 2012.
4. On 26 September 2013, the applicants lodged their non‑refoulement claim. Their claim was made on the basis that they will be harmed by the village chief who accused the 1st applicant of defaming him, because she had complained to the Sub-district office against him for accepting bribe from her cousin to obtain a piece of land which belonged to her.
5. Since the applicants’ torture claim had already been rejected on appeal, the refusal of their torture claim would not be reviewed under the Unified Screening Mechanism. The Director considered their non‑refoulement claim on the grounds of BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].
6. The Director considered that the village chief did not have any real intention to harm the applicants as asserted, as he had never inflicted any physical harm against the 1st applicant and her siblings in the past and the 2nd and 3rd applicants were irrelevant to the dispute between the village chief and the 1st applicant. The dispute was localized and private in nature, and had nothing to do with the Indonesian government. The Director further assessed that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk. Thus, the Director rejected their non-refoulement applications by a Notice of Decision dated 30 April 2018.
The Board’s decision
7. The applicants’ appeal against the Director’s said decision was heard before the Board on 14 November 2018. The Board found that there is no ongoing threat of serious or significant harm to the applicants should they return to the village now. The applicants failed to adduce any evidence to support the assertion that they would be at risk of a variety of criminal acts in Indonesia. The Board held that the applicants failed to make out their case for non-refoulement protection and rejected the appeal on 10 January 2019.
The intended judicial review
8. The applicants filed a Form 86[5] and an affirmation on 8 March 2019 to seek leave to apply for judicial review against the decision of the Board dated 10 January 2019.
9. They relied on these grounds in support of their intended challenge:
(1) procedural impropriety or unfairness: the adjudicator failed to make sufficient research and inquiry into the Country of Origin Information (“COI”) materials; he failed to call for psychological and psychiatric evaluations and reports; he applied incorrect standard of proof; there was insufficient legal representation; the hearing bundle was given to the 1st applicant shortly before the hearing without translation; and the BOR 2 risk was not screened by a judge or the Immigration Department;
(2) irrationality: the adjudicator cherry-picked the COI and relied on outdated information; he failed to make findings of whether there existed consistent patterns of gross, flagrant or mass violation of human rights in Indonesia; he failed to assess state protection in Indonesia; he took into consideration and put weight on irrelevant or incorrect matters; and he failed to consider the Hong Kong Bill of Rights Ordinance, Cap 383 in relation to children’s rights.
The judge’s decision
10. The 1st applicant appeared at the hearing before the judge on 30 October 2019. She confirmed that she was able to express her case freely before the immigration officer and the adjudicator. The judge held that the grounds for judicial review are either opinions without evidence or particulars or irrelevant to the Board’s findings. As the applicants failed to show any reasonable prospect of success in their proposed judicial review, the judge refused the leave application on 6 December 2019.
The grounds of appeal
11. The applicants filed a Notice of Appeal on 18 December 2019 against the judge’s decision. It was stated as their grounds of appeal that the judge did not consider that they would face tremendous fear upon refoulement and that the procedure of the Board and the Director was improper.
12. The vague allegation against the Board of procedural impropriety may be treated as covered in their grounds raised in the previous leave application.
Non-compliance with directions for lodging of skeleton argument
13. Directions were given by the Registrar on 7 January 2020 for the applicants to lodge a skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicants fail to lodge a skeleton argument in accordance with the directions, they shall be deemed to waive their right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.
14. The appeal was scheduled to be heard on 27 May 2020[6]. On 17 April 2020, Kwan VP extended the deadline for the applicants to comply with the Registrar’s directions to lodge a skeleton argument to 8 May 2020[7].
15. The applicants failed to lodge a skeleton argument on or before 8 May 2020. As the directions of the Registrar were not complied with, the applicants shall be deemed to waive their right to have an oral hearing and elect to have the appeal disposed of on paper. By letter dated 15 May 2020, the court informed the applicants that the hearing date of 27 May 2020 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.
Legal Principles
16. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.
17. 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. 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.
18. 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.
Analysis and disposition
19. The grounds of appeal are just bare assertions without elaboration or evidence in support. In particular, the applicants failed to adduce evidence to refute the findings of the Board or to establish that there are errors of law or procedural unfairness or irrationality in the decision of the Board. They also failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
20. There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review. We therefore dismiss the appeal.
(Susan Kwan)
Vice President |
(Peter Cheung)
Justice of Appeal |
The 1st to 3rd Applicants (Appellants), acting in person
[1] [2019] HKCFI 2960
[2] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.
[5] The 2nd and 3rd applicants, who are minors and persons under disability, did not bring these proceedings by next friend, who must act by a solicitor (see Order 80 rules 2(1) and (3)). But the court has power to treat the failure to comply with these provisions as an irregularity under Order 2 rule 1(1), so the proceedings will not be nullified by reason of the non-compliance.
[6] The notice of hearing sent to the applicants by registered post was unclaimed and returned to the court.
[7] The letter notifying the applicants of the direction was returned to the court by post office.
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