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CACV 372/2023, [2024] HKCA 145
On Appeal from [2023] HKCFI 2809
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 372 OF 2023
(ON APPEAL FROM HCAL 1145 OF 2019)
________________________
________________________
| Before: |
Hon Kwan VP and Lisa Wong J in court |
| Date of hearing: |
30 January 2024 |
| Date of Judgment: |
8 February 2024 |
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”) on 14 November 2023 refusing the applicant leave to apply for judicial review (“Judge’s Decision”). The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 6 March 2019 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”). Such decision was explained in, and communicated to the applicant through the Duty Lawyer Service by, a notice of decision dated 9 November 2018 (“Director’s Decision”).
Basis and allegations in support of NRF Claim
2. The basis of the NRF Claim made by the applicant, a national of Indonesia, is a fear of being harmed or even killed by a moneylender and her father as she is unable to repay her father’s debt.
3. The circumstances giving rise to such alleged fear have been set out in detail in paragraphs 8.3 to 8.16 of the Director’s Decision and in gist in [3] to [5] of the Judge’s Decision which is embodied in the Form CALL-1 dated 14 November 2023, [2023] HKCFI 2809 (“Form CALL-1”).
Overstay in Hong Kong and lodgment of NRF Claim
4. The applicant first came to Hong Kong to work as a foreign domestic helper in 2004. Her last employment contract was terminated on 10 January 2010. She should have left, but did not leave, Hong Kong on or before 26 January 2010[1]. She overstayed since 27 January 2010 and was arrested by the police on 3 November 2011.
5. On 30 November 2011, the applicant lodged a torture claim[2] (“CAT Claim”) by written representation dated 10 November 2013. In support of the CAT Claim, the applicant also (1) submitted to the Director a completed Torture Claim Form dated 16 September 2013 (“TCF”) and (2) attended a screening interview by the Director’s representative(s) on 24 May 2013 (“First Interview”). The Director rejected the CAT Claim on 19 June 2013. The applicant’s appeal against the rejection of the CAT Claim was dismissed by the Board on 3 October 2013.
6. In the meantime, the applicant had raised the NRF Claim by written representation on 27 August 2013. In support, the applicant (1) submitted to the Director a completed Supplementary Claim Form dated 15 October 2018 (“SCF”) and (2) attended another screening interview with the Director’s representative(s) on 6 November 2018 (“Second Interview”).
Director’s Decision
7. After considering the information provided by the applicant in the TCF and NCF and at the First and Second Interviews, the Director found the NRF Claim unsubstantiated under any of the 3 remaining grounds for non-refoulement protection: persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].
8. Briefly:
(1) The ill-treatments inflicted on the applicant by the moneylender and her father did not reach the minimum level of severity.
(2) There was no objective evidence that the moneylender or the father had (or still have) any real intention to harm the applicant.
(3) The applicant’s behaviour was inconsistent with a person genuinely in fear of being harmed or killed.
(4) There was no conclusive evidence that the moneylender or the applicant’s father would have sufficient resources to locate or target the applicant everywhere in Indonesia.
(5) State protection and internal relocation alternatives would be available in Indonesia to lower or even negate any risk of harm perceived by the applicant.
Appeal to Board and Board’s Decision
9. The applicant appealed against the Director’s Decision to the Board.
10. The Board conducted a rehearing of the NRF Claim on 18 February 2019, which the applicant attended to give evidence and answer the Board’s questions through an Indonesian/English interpreter.
11. The Board dismissed the appeal on all 3 grounds for non-refoulement protection considered by the Director.
12. More particularly, the Board did not accept that the applicant would face any of the proscribed harms from either the moneylender or her father upon return to her home country. There were a number of significant inconsistencies in the applicant’s evidence at different times to various decision-making authorities in Hong Kong. It is inherently improbable that the applicant would be unable to provide any details of the context in which her father first made a threat to kill her.
13. The Board concluded that the applicant did not make out the NRF Claim and dismissed her appeal on 6 March 2019.
Application for leave for judicial review and Judge’s Decision
14. By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1145/2019 on 30 April 2019 (“Form 86”), the applicant applied for leave for judicial review of both the Director’s Decision and the Board’s Decision.
15. The Form 86 did not state any proposed ground for judicial review. The affirmation filed on the same day merely exhibited a copy of the Board’s Decision.
16. The applicant did not request for an oral hearing. After considering the written material before him, the Judge refused to grant leave to apply for judicial review of the Board’s Decision[6] for the reasons set out at [13]–[18] of the Form CALL-1:
“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … …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.’
16. The Board, for the reasons given above, rejected the applicant’s evidence. The applicant has raised no valid ground to challenge the Board’s Decision.
17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”
Appeal to Court of Appeal - Grounds of Appeal
17. By the notice of appeal filed herein on 17 November 2023, the applicant appealed against the Judge’s Decision on 2 grounds:
(1) “Ground 1” - She would face hardship if she is to return to her home country.
(2) “Ground 2” - The Board has made groundless speculations by relying on sources of news that were not officially recognised or were simply hearsay and cases that were outdated.
18. On 19 January 2024, the applicant lodged written submission, by which she referred to ST v Director of Immigration (sic)[7][2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.
19. The applicant further cited Secretary for Security v Prabakar (2004) 7 HKCFAR 187 to submit that the Board ought to have considered matters such as the country conditions of her country of origin but did not do so.
20. In purported support of Ground 2, the applicant cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Pearl Securities Ltd v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 and Michael John Treloar Rowse v Secretary for the Civil Service [2008] 5 HKLRD 217 to make the point that a decision-maker is under a constitutional duty to act fairly in the decision-making process.
21. The appeal was heard on 30 January 2024. The applicant appeared in person. She indicated that she had nothing to add in support of the appeal.
Relevant legal Principles
Court of First Instance’s role in judicial review in non-refoulement claims
22. The primary decision-makers in a claim for non-refoulement protection are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeals against refusal of leave for judicial review in non-refoulement claim
23. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will not normally entertain any new arguments that are fact sensitive and should have been raised in the court below. The Court of Appeal shall interfere if and only if the judge had erred in law or failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].
Discussion
24. First, as mentioned above, the applicant had not, in either the Form 86 or the supporting affirmation, set out any proposed ground for judicial review. It follows that none of the matters now raised as grounds of appeal against the Judge’s Decision had been raised before the Judge. That being the case, we do not see how the Judge can be faulted for refusing leave. The appeal can be dismissed on this basis alone.
25. In any event, neither the notice of appeal nor submission (whether written or oral) shows any merits.
26. Ground 1 merely reiterates the applicant’s much repeated allegation that she would suffer hardship upon return to her home country. The question whether the applicant would be at risk of life or torture upon being refouled to Indonesia is a question of fact within the province of the Board (after the Director). It is clear from paragraph 62 of the Board’s Decision that the applicant’s claims of hardship were rejected essentially on credibility because the applicant’s evidence on material aspects of the NRF Claim was riddled with inconsistencies and thus incredible. The Board’s analysis and conclusions are, in our view, sound. Ground 1 has no merit.
27. Ground 2 also fails. First, it targets the Board rather than the Judge. Second, the applicant has not particularised the groundless speculations that she said the Board had made or pinpointed the news or cases that wrongly led the Board to such speculations.
28. As for the written submission, the applicant made no attempt to elaborate on whether and, if so, how the trite principles referred to had not been applied in the processing of her non-refoulement claim by the Director or the Board or the disposal of her application for leave to apply for judicial review by the Judge. Although she did mention that the Board ought to have considered matters such as the conditions of her country of origin but did not do so, paragraphs 9 and 58 of the Board’s Decision actually show that the Board had considered the country of origin information which may be relevant to the applicant’s case.
29. The applicant has failed to identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
30. In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
Disposition
31. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
(Susan Kwan)
Vice President
Court of Appeal
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(Lisa Wong)
Judge of the Court of
First Instance
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The applicant, unrepresented, appeared in person
[1] Which was the last expiry date of her visa as extended by the Director.
[2] Pursuant to article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) (or “torture risk”) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the HKBORO.
[6] Although the applicant had also sought, without stating any ground, to have the Director’s Decision judicially reviewed, such decision had been superseded by the Board’s Decision and was not susceptible to judicial review (Re Moshsin Ali [2018] HKCA 549). The Judge was right in not dealing with the Director’s Decision.
[7] The correct citation should be ST v Betty Kwan.
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