RE HIDAYAH

CACV 160/2018

[2018] HKCA 595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 160 OF 2018

(ON APPEAL FROM HCAL NO. 586 of 2017)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 8 May 2018 refusing her leave to apply for judicial review.  According to the Form 86, the intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 4 August 2017, which dismissed the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 7 July 2015 and 6 June 2017 rejecting her non-refoulement claim.  The applicant consents to the appeal being heard by a two-judge Court.[1]

2.  The applicant is an Indonesian national.  She arrived in Hong Kong on 11 June 2009 and was given permission to remain for employment as a domestic helper.  The permission to remain was last extended to 11 June 2012 or two weeks after termination of her employment contract, whichever was earlier. On 23 November 2011, the applicant was arrested by the police for theft and her contract was terminated prematurely on the same day.  She was subsequently charged and convicted of the offence and sentenced to four months’ imprisonment.  On 23 December 2013, she made a non-refoulement claim based on her fear that, if refouled to Indonesia, she would be harmed by her husband because she was in a relationship with another man in Hong Kong and also by a moneylender because she could not repay a loan incurred by her husband. 

3.  The factual basis of the applicant’s claim was set out in [6] of the Director’s first decision, and summarised by the Judge in [6] and [7] of Form CALL-1 dated 8 May 2018, [2018] HKCFI 905 as follows:

“6. To summarise, her husband is a violent gambling drunkard and she was the victim of domestic abuse. The applicant had worked in Hong Kong and in Singapore in the past and all her husband was good for was taking her hard earned money. The applicant had never once reported her husband to the police for beating her. After she came to Hong Kong on the last occasion, after 2009 he borrowed money in her name using their marriage certificate and expected her to repay the loan.

7. When she stopped repaying, the moneylender went to her family home, took the applicant’s motorbikes, threatened her mother and told her neighbours there was a reward on her head.  Her husband has also threatened to kill her when she returns to Indonesia because he has found out she is in a relationship with another man in Hong Kong.  After the threats from the moneylender, she has lost contact with her entire family in Indonesia.” 

4.  By a Notice of Decision dated 7 July 2015, the Director rejected the applicant’s claim having regard to the torture risk[2], the BOR 3 risk[3] and the persecution risk[4].         

5.  On 20 July 2015, the applicant lodged an appeal to the Board against the Director’s decision. 

6.  Meanwhile, the Director by letter dated 19 May 2017 invited the applicant to provide additional facts relevant to an assessment of the BOR 2 risk[5].  Not having received a response from the applicant, the Director proceeded to assess her claim under the BOR 2 risk ground based on the primary materials prepared for the other applicable grounds for her non-refoulement claim.  By a Notice of Further Decision dated 6 June 2017, the Director decided against the applicant.    

7.  The Board listed the applicant’s appeal for an oral hearing on 11 October 2016.  The applicant did not appear at the scheduled time.  The Secretariat of the Board attempted to contact the applicant on the mobile number provided by her in the notice of appeal/petition, but could not reach her.  By a notice dated 11 October 2016 sent under section 15 of Schedule 1A of the Immigration Ordinance, Cap. 115, the applicant was informed that unless within seven days she provided a satisfactory written explanation of her failure to attend the hearing, the Board would determine her appeal in her absence. The applicant did not provide any explanation for her absence.  The Board therefore proceeded to determine the appeal in her absence. 

8.  By a decision dated 4 August 2017, the Board dismissed the appeal having regard to all applicable grounds, including BOR 2 risk.  The Board’s reasoning was encapsulated in [29] to [31] of its decision:

“Consideration of the Petitioner’s Claim

29. It is incumbent upon the Petitioner to satisfy the Board that there is a real risk or chance, or that there are substantial grounds for believing, that she would suffer the harm she claims to fear if she were to return to Indonesia.

30. The Petitioner has described her situation in the information supplied to the Department.

31. However, in view of her failure to attend the Hearing, the Board is unable to determine the credibility of her assertions. In the absence of oral evidence from her, the Board is unable to determine whether there is a real risk or there are substantial grounds for believing that she would suffer the harm she claims to fear were she to return to Indonesia.

32. The appeal/petition is accordingly dismissed on all applicable grounds.”

9.  The applicant filed her Form 86 on 5 September 2017 seeking leave to apply for judicial review.  While her Form 86 only sought relief against the Board’s decision, her affirmation filed on the same day also sought relief against the Director’s first decision of 7 July 2015.   

10.  The applicant advanced the following grounds in support of the relief sought:

(1)   Against the Board’s decision,

(a)   Failure to re-conduct an oral hearing. She did not receive the notice of hearing from the Board and was not aware of the hearing date, hence she did not attend the hearing.

(b)   Failure to give adequate reasons for rejecting her claim on the BOR 2 risk ground.

(2)   Against the Director’s decision,

(a)   Failure to conduct sufficient inquiry into the relevant country of origin condition.

(b)   Failure to consider that the threat from her husband was true in the light of the history of domestic violence and his past conduct as set out in the non-refoulement claim form. 

(c)   Failure to give reasons for finding there was insufficient basis to support the BOR 3 risk ground.

11.  On the applicant’s request, an oral hearing was held on 29 December 2017.  The Judge refused to give leave to apply for judicial review for the reasons stated in [11] to [17] of the Form CALL-1:

“11. In her Form 86 the applicant states both the Director and the TCAB as proposed respondents but then states the TCAB as an interested party. In the same Form 86 she then only seeks to apply to judicial review the TCAB decision of 4 August 2017, no other decision. However, in her affirmation she does also include the decision of the Director dated 7 July 2015.

12. The applicant utilised the channel of appealing the Director’s decision to the TCAB. The TCAB is to treat the appeal/petition as a de novo hearing or rehearing. In my view, to seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the Director’s decision unless in very specific circumstances. Those circumstances do not arise here. I have considered the grounds of this application against the decision of the TCAB only.

13. In her affirmation, in her first ground the applicant explains that the TCAB sent a notice of hearing to her address but unfortunately she did not receive the letter and they did not call her mobile telephone number to inform her of the date therefore she was absent at the appeal hearing. During the oral hearing she admitted to the court that she had moved house and not informed the TCAB which is very different from the explanation in the affirmation. The applicant has a duty to update her address with the TCAB having served a notice of appeal on the TCAB. The fault lies entirely with the applicant.

14. In paragraph 2 of her affirmation which I take to be ground 2 refers to the adjudicator not providing adequate reasons for rejecting the applicant’s BOR 2 risk claim. The adjudicator said in paragraph 10 of his decision that he took into account the materials supplied with and referred to in the appeal bundle, the Director’s decisions and all the applicant’s evidence. He set out Article 2 of the Hong Kong Bill of Rights Ordinance and reiterated that the applicant needed to show that there is a personal and real risk of her absolute and non-derogable rights, including the right to life, under BOR 2 being violated. He found her failure to attend the hearing meant he was unable to determine the credibility of her assertions and therefore unable to determine whether there is a real risk or there are substantial grounds for believing that she would suffer the harm she claims to fear was she to return to Indonesia. In any event, her claim did not rely on BOR 2, she did not assert she was at risk of harm from capital punishment inflicted by the government or faced harm from her government that would put her life at risk. There was no merit in that ground.

15. Paragraphs 3, 4 and 5 of her affirmation submit procedural impropriety against the Director’s decision and complain of a failure to conduct sufficient enquiry into Country of Origin (“COI”) information and a failure to give sufficient reasons for finding a failure of a BOR 3 claim. As I have said above, this application should only apply to the TCAB decision but if I am wrong, it is clear the director made no errors of law nor do I see any evidence of procedural unfairness. The COI information the Director referred to and relied on is abundant, objective and up-to-date and the finding of State protection most reasonable. He sets out the test for a BOR 3 claim, applies the applicant’s evidence and gives plain, full and complete reasons for his findings.

16. I do not find any grounds in the applicant’s affirmation that show there was an error of law made by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. I do not see the decision to proceed to decide on the papers without a rehearing in the applicant’s absence as unreasonable; it was not Wednesbury unreasonable. This applies also to the decision of the Director.

17. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

12.  In the Notice of Appeal dated 16 May 2018, the applicant advanced four grounds of appeal:

(1)   Failure to properly apply paragraph 2 of General Comment No. 2 of the United Nations Committee Against Torture, which requires each State party to effect reforms and provide avenues of redress that are effective.

(2)   The Board and the Director committed error of law with regard to the meaning of severe physical or mental suffering, and in finding she had not suffered any severe pain or mental suffering.

(3)   Neither the Board nor the Director had explained why she failed to meet the requisite level of severity.  Her life will be in danger if she were to return to Indonesia.

(4)   She is pregnant by her boyfriend in Hong Kong.  If she were refouled to Indonesia, she would face persecution from her family and the society.

13.  Grounds (1) and (4) are new grounds that were not raised in the application for judicial review before the Judge.  An appeal against refusal of leave to apply for judicial review is not an occasion to run arguments that could have been but were not raised in the Court of First Instance, and this Court will not generally entertain new arguments that are fact and evidence sensitive, which have not been canvassed in the Court of First Instance and for which leave has not been sought within time: see Re Nupur MST [2018] HKCA 524 at [14].  We see no justification for allowing these two new grounds to be raised in this appeal.  There is, in addition, a complete lack of particulars and evidence to support these grounds. 

14.  As to Grounds (2) and (3), the applicant’s written submission also made the point that there were insufficient reasons to support the decision that she would not be subjected to harm if she were to be refouled to Indonesia.   

15.  The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia.  This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision).  There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal.  As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm.  Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.         

16.  We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.     

17.  Accordingly, we allow the appeal and grant leave to the applicant to judicially review the Board’s decision on the ground that the Board had failed to give, or had given insufficient, reasons for its decision.