RE TITIN ANITA NURJANAH alias NURJANAH TITIN ANITA alias TITIN ANITA NURJANAH

CACV 458/2020

[2021] HKCA 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 458 OF 2020

(ON APPEAL FROM HCAL NO. 652 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 31 August 2020 in HCAL 652/2018 refusing leave to the applicant to apply for judicial review of the decision of Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 4 April 2018 in which the Board confirmed the decision made by the Director of Immigration (“the Director”) dated 26 May 2017.

Background

2.  The Applicant is a 45-year-old national of Indonesia who last arrived in Hong Kong on 1 September 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract.  When the applicant’s last contract was prematurely terminated on 29 August 2015, she did not depart and instead overstayed. She was intercepted by the Immigration Department on 5 December 2016 and she raised a non-refoulement claim by way of written representation on 13 and 17 January 2017 on the basis that if she were to return to Indonesia she would be harmed or killed by her abusive ex-husband for failing to give him money and/or by her creditor for failing to repay a loan.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 2139.

3.  By the Notice of Decision dated 26 May 2017, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.  The applicant appealed to the Board.  The appeal was heard on 9 February 2018 and by the Board’s decision made on 4 April 2018, the appeal was dismissed.  In its decision the Board accepted the applicant’s claim of being abused by her husband and threatened by the loan shark in Indonesia, but she failed to show a real and substantial risk that if refouled, she would face a serious violation of her human rights and serious or intolerable harm.  It was also found that her problems were domestic or personal monetary disputes with no official involvement and that state/police protection would be available to her.  Further, internal relocation is reasonable as she could safely move away from her home district to other areas in large cities such as Jakarta where she can re-establish her life and work without any risk of being located by her husband or the loan shark.  For the aforesaid reasons, her claim for non-refoulement protection failed on all applicable grounds.  

5.  On 17 April 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board. She did not provide any ground of relief in her Form, and in her supporting affirmation of the same date she merely attached copies of those decisions and other previous documents but without putting forward any proper or valid grounds for her intended challenge, nor did she request any oral hearing for her application. 

The Judge’s decision

6.  The applicant did not request for an oral hearing in the Form 86 and the application was disposed of on paper.  On 31 August 2020, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [11] – [14] for his refusal to grant leave:

“11.  On 17 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of those decisions and other previous documents but without putting forward any proper or valid grounds for her intended challenge, nor did she request any oral hearing for her application.  As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.   

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 

13.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.  

14.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

The Appeal

7.  On 11 September 2020 , the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated ground of appeal is as follows:

“I am not satisfied with the decision of authorities of and the court as well. The court and the authorities have been negligent and failed to perform a standard duty of care that is specifically targeted as Non-Refoulement claimant like me. So I want to review my case from this court. Such discrimination is a question of great general or public importance.”

8.  In her written submissions, she provided further grounds as follows:

(1)  She did not agree with the Director’s and the Board’s decisions and she did not think her case was determined fairly.

(2)  Without knowing thoroughly how her case was determined, it is not easy for her to appeal that decision. She believes there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claims.

(3)  First and foremost, she was never provided with proper legal and language assistance.  With her limitations in terms of resources, funding and language capability, it has been burdensome for a non-refoulement claimant like her to appeal against the decision.  The determinations of the Board had never been read to her in her language and she believes such failure in providing proper assistance to non-refoulement claimants is procedurally unfair.

(4)  She urges the authorities to take into account the real procedural unfairness throughout the case and to put aside the public policies of trying to dispose of non-refoulement claims as quickly as possible.

(5)  She was not informed fully of her rights or given the opportunity to be heard with assistance from the beginning of her case.

(6)  The discriminating act of authorities in quick disposal of non-refoulement cases is unacceptable and detrimental to the spirit of the judicial system. 

General Principles

9.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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 scrutinizing 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.

(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 and rejected by the judge or for running arguments which could and should have been raised but not raised before 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)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

10.  In our judgment, the grounds of appeal as set out the Notice of Appeal and the written submissions were general assertions and unsubstantiated allegations which cannot be construed as valid grounds of appeal.

11.  Regarding the applicant’s complaint on lack of language assistance for her appeal before the Board, we note that the applicant was assisted by an Indonesia interpreter at the appeal hearing before the Board[5]. Moreover, it is trite that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as she may desire: Re Usman Muhammad [2019] HKCA 1404 at [18] and Re Gurung Sagar [2019] HKCA 658 at [12].  Furthermore, all the documents filed in court in support of the appeal including the written submissions lodged by the applicant were written in English.  This indicates either the applicant is conversant with the English language or that she has access to language assistance if needed.  Her complaints were devoid of merit.

12.  We have carefully reviewed the decisions of the Board and the Judge, we are satisfied that those decisions are free from error of law or procedural fairness, and there is no failure on their parts to apply high standard of fairness in their consideration and assessment of the applicant’s claim.  In our judgment, none of the grounds complaining against procedural unfairness can stand.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.