RITA SETIANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 359/2019

[2019] HKCA 1309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 359 OF 2019

(ON APPEAL FROM HCAL 1438 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung (“the Deputy Judge”) as set out in the Form CALL‑1 dated 29 July 2019 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 1910.  The intended judicial review is against the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 14 February 2017 (“the Board’s First Decision”) and 6 July 2018 (“the Board’s Second Decision”).  She also challenged the decisions of the Director of Immigration (“the Director”) dated 5 May 2015 (“the Director’s First Decision”) and 20 April 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

2.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.  Similarly, the Board’s First Decision and the Board’s Second Decision will be referred to collectively as “the Board’s Decisions”. 

3.  By a letter dated 6 August 2019, the applicant gave consent to the appeal being heard by a two-member court.            

A.  Background

4.  The applicant is a national of Indonesia.  She entered Hong Kong on an employment visa as a domestic helper on 1 January 2010.  She was permitted to stay until 26 October 2011 or two weeks after termination of contract, whichever was earlier.  Her contract was terminated prematurely on 12 September 2011.  She did not leave Hong Kong within two weeks of termination and was arrested on 22 August 2012.  She lodged a non-refoulement claim on 19 May 2014. 

5.  The details of the applicant’s claim and her personal background were set out in paragraph 6 of the Director’s First Decision, and paragraphs 24-34 of the Board’s First Decision.

6.  Briefly stated, the applicant claimed that she would be killed by her stepmother Anita and a loan shark Sukarno if she returned to Indonesia, as she was unable to repay the loan lent to her family.  She also fears that her life would be in danger if she refuses to marry Sukarno upon return.  The applicant claimed that her family borrowed a huge sum of money from Sukarno in 2001.  The loan remained unpaid and her father told her that Sukarno requested the applicant to marry him to pay off the loan.  Sukarno had been the village head since 1997 and was very powerful. She was constantly pressurized by her father to marry Sukarno and also abused by her stepmother if she refused to do so.  In December 2002, the applicant was kidnapped to Sukarno’s warehouse where Sukarno attempted to rape her.  She had no choice but to agree to marry him so that she could escape.  Eventually, the applicant fled to Hong Kong.  

B.  The Director’s Decisions and the Board’s Decisions

7.  The Director assessed the BOR3 risk^[1], the persecution risk^[2]and the torture risk^[3]in the Director’s First Decision, and the BOR2 risk^[4]in the Director’s Second Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decisions to the Board.  The appeal against the Director’s First Decision was heard on 25 August 2016, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board in the Board’s First Decision concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed her appeal.

9.  The Board found that the dispute between her and the loan shark was merely private in nature.  There was no evidence showing that the applicant had suffered any serious harm or injury in the past.  Further, there was no indication that the Indonesian government or any governmental authority had any involvement in her private dispute.  In any event, internal relocation was available to the application (paragraphs 40-47 of the Board’s First Decision).

10.  In the Board’s Second Decision, the Board found that it had not been shown that there was or would be a necessary and foreseeable breach of the rights protected by BOR 2.  In light of the factual findings in the Board’s First Decision, the Board concluded that there was no evidence to show that the applicant would be at a risk of harm from capital punishment inflicted by the government.  Thus, the Board affirmed the Director’s Second Decision.

C.  The Deputy Judge’s Decision

11.  The applicant filed a Form 86 on 23 July 2018 seeking leave to apply for judicial review against the Board’s Decisions and the Director’s Decisions. The grounds of review stated in her supporting affirmation filed on the same date were summarized by the Deputy Judge at paragraph 11 of the Deputy Judge’s Decision as follows:

“11. In her affirmation in support of her application, the applicant relied upon the following grounds:

(1) the Adjudicator did not hold an oral hearing for her for the assessment of BOR 2 risk;

(2) the Adjudicator failed to conduct sufficient enquiry into the Country of Origin Information (“COI”);

(3) the Adjudicator did not explain why he should pick the COI that did not support her claim;

(4) the Adjudicator did not consider that her country should carry out reforms to safeguard her safety in her country in accordance with paragraph 2 of the United Nations Committee’s General Comment No.2; and

(5) the Adjudicator failed to consider the psychological impact on her by the injuries and the abusive language she was subjected to.”

12.  The Deputy Judge heard the applicant’s leave application on 17 January 2019.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 12-22 of the Deputy Judge’s Decision:

“The Director’s Decisions

12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigation in the matter. The Board had considered her appeal and made its Decision.

13. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

14. Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

15. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

16. I note that the application is out of time for the Board’s First Decision but is within time for the Board’s Further Decision. This situation is caused by the Immigration Department’s unified screening mechanism. This new system separated the screening into two parts, the first being on the Torture risk, the BOR 3 risk and the Persecution risk; the second being on the BOR 2 risk only. It is a sensible operation by which time and costs can be saved. This is due to no fault of the applicant. I therefore grant the extension of time to the applicant for leave to apply for judicial review in respect of the Board’s Decision to coincide with time for the Board’s Further Decision and both Decisions should be heard together. Accordingly, I shall hear her application.

17. The applicant appeared before me. She confirmed that she considered that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator.

18. Under section 12 of Schedule 1A of the Immigration Ordinance, Cap 115, it is within the Adjudicator’s discretion that the Board may determine an appeal without hearing, having regard to the material before it and the nature of the issues raised, if it is satisfied that the appeal can be justly determined without a hearing. The Adjudicator had given his reasons for his decision in the Board’s Further Decision. Ground (1) fails.

19. Grounds (2) and (4) are her personal opinions without any evidence to support them. They are unsubstantiated allegations and must fail.

20. Ground (3) also fails because it is within the Adjudicator’s power of adjudication as to what evidence should be given weight and what evidence should be disregarded, using his common sense and experience as an Adjudicator. The applicant is unable to identify the specific problem or error. This Court should not interfere with the Adjudicator’s discretion in the finding of facts. See Re: Ali Haider CACV8/2018, [2018] HKCA 222 at paragraphs13 & 14.

21. Ground (5) fails because the applicant did not raise this issue to the Board at the appeal hearing.

22. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

D. Grounds for appeal

13.  The applicant filed the Notice of Appeal dated 6 August 2019 to appeal the Deputy Judge’s Decision.  She set down the following grounds:

“1. Failure to conduct sufficient inquiry into the relevant country of origin conditions.

2. Failure to consider my Fear, and the Judgement the Honourable Judge only supported the TCAB Decision and Failure to consider my claim under BOR3 risk.

3. Failure to consider the concept of extended state acquiescence by Lam J (as he then was) in TK v Jenkis.” [sic]

14.  Pursuant to Master Au-Yeung’s directions dated 29 August 2019, the applicant submitted her skeleton submissions on 18 September 2019 and argued that (1) the Board and the Director failed to comply with their duties to make sufficient enquires into the country of origin conditions as required by the principle of high standards of fairness laid down in Prabakar and TK, and (2) the decision makers failed to take into account relevant considerations and took into account irrelevant considerations.  To elaborate, she argued that the Board and the Director failed to give due regards to the fact that she would face real risk upon return and her life would be in danger and that she had severe mental distress.  She also submitted that a group of murderers are still looking for her.  Apart from these, she did not identify any errors in the Deputy Judge’s Decision.

15.  At this hearing, the applicant confirmed that she had nothing further to add to what had already been set out in the Notice of Appeal and the written submission in support of this appeal.

E.  Discussion

16.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. They can be summarized as follows.

17.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it 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, procedural unfairness or irrationality in the decision of the Board.

18.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

20.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decisions.

21.  Bearing these principles in mind, we now turn to consider the grounds of appeal.

22.  As rightly pointed out by the Deputy Judge, the Court of Appeal have explained in Re Moshsin Ali at [31] – [45] that the Director’s decision is not susceptible to judicial review once an appeal to the Board is pursued by a claimant.  Accordingly, the applicant’s grounds of appeal relating to the Director’s Decisions are rejected.  In this respect, we agree with the Deputy Judge’s approach at [12] to [15] of the Deputy Judge’s Decision.

23.  Further, the applicant did not identify any errors in the Deputy Judge’s Decision.  There are no viable grounds in her Notice of Appeal.

24.  To start with, the Deputy Judge was not tasked to assess the country of origin which is within the parameters of the decision makers’ responsibilities.  Likewise, the Deputy Judge did not in fact make any finding as to the absence or otherwise of state acquiescence or involvement.  He was not tasked to assess whether there was any state acquiescence, which again was within the province of the primary decision makers, ie, the Board (after the Director).  These grounds are therefore wholly misconceived.

25.  In any event, state acquiescence or involvement was fully considered by the Board, which had found that there was no involvement of state actors (paragraphs 40(C) of the Board’s First Decision).  Therefore, the grounds in relation to the Deputy Judge’s failure to conduct sufficient inquiries or make findings of state acquiescence must fail.

26.  Meanwhile, it is plainly wrong to allege that the Deputy Judge merely supported the Board’s Decisions and failed to consider the applicant’s BOR 3 claim. 

27.  The Deputy Judge in his decision had carefully examined the Board’s Decisions.  He was not required to consider the applicant’s BOR 3 claim as his responsibility was to assess whether the Board, in dismissing the applicant’s claim, had committed any errors in law or fact.  The Deputy Judge explained his reasons to uphold the Board’s Decisions in details at the Deputy Judge’s Decision and concluded that the applicant herself had failed to provide any evidence to support her challenges against the Board’s Decisions.  Thus it is misconceived to state that the Deputy Judge only supported the Board’s Decisions.

28.  Since the grounds in the applicant’s Notice of Appeal and the skeleton submissions targeted at the decision makers, i.e., the Board and the Director.  There is no valid basis to show that the Deputy Judge was wrong in any respect in his reasons for refusing the applicant’s application for leave to apply for judicial review.

29.  In any event, we have reviewed both the Board’s Decisions and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

30.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.