RE KORIATUL KAROMAH

CACV 494/2020

[2021] HKCA 787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 494 OF 2020

(ON APPEAL FROM HCAL 1392 OF 2018)

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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 by the abovenamed applicant, Ms KORIATUL Karomah, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 16 January 2020 (”Form 86”) refusing her leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 8 June 2018 (“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 rejection was embodied in, and communicated to the applicant by, a notice of decision dated 9 August 2017 (“Director’s Decision”).

Bases and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Indonesia now aged about 43, is a fear of being harmed or even killed by her stepmother (“Suminten”) who had mistreated her in the past.

3.  The circumstances giving rise to such fear have been set out in detail in paragraph 6 of the Director’s Decision and paragraph 9 of the Board’s Decision and in gist in [2] to [4] of the Form CALL-1 dated 16 January 2020, [2020] HKCFI 131 (“Form CALL-1”). 

4.  Briefly:

(1)  The applicant was raised by her father and Suminten (whom she thought was her biological mother until 1993). 

(2)  After her father died in 1986, Suminten treated the applicant well enough until she completed primary school.  Thereafter, she refused to let the applicant continue her schooling and made her work all day in the rice field. She prohibited the applicant from going out on her own.

(3)  In 1993, the applicant discovered that Suminten was only her stepmother.

(4)  When she turned 18, Suminten demanded her to sign over the ownership of their house and rice field to her, which the applicant did.

(5)  Suminten told the applicant when she was in her mid-twenties that she should never get married but should devote her whole life to Suminten.  The applicant was upset.

(6)  She fell ill shortly afterwards but Suminten accused her of just being lazy.  She did not give the applicant sufficient food or medicine.  She forced her to get out of bed to work in the rice field.  When the applicant took a rest, Suminten pushed her from behind.  She further grabbed her right arm and cut it with a sickle.  The applicant has got a permanent scar on her right arm as a result of the injury.

(7)  The applicant’s health deteriorated.  Even then, Suminten gave her food only once every 2 days.  She locked the applicant up in her bedroom.  She also beat her up at will.

(8)  Gradually, the applicant became desperate to leave Suminten. 

(9)  In about mid 2004, the applicant sneaked out of the house.  She heard Suminten yell from behind that she would kill her if she dared to return.  That was her last contact with Suminten.

(10)  The applicant made her way to Surabaya and Malang City where she worked various manual jobs.

(11)  In around early 2006, she decided to apply to work as a foreign domestic helper in Hong Kong.

(12)  On 14 February 2007, she departed for Hong Kong.

Overstaying in Hong Kong and lodgment of NRF Claim

5.  The applicant last arrived in Hong Kong on 13 October 2008 with permission to stay and work as a foreign domestic helper until 12 November 2009.  On 25 December 2008, the applicant’s contract was prematurely determined.  Instead of leaving Hong Kong within 2 weeks, the applicant overstayed since 9 January 2009. She was intercepted by the Immigration Department on 3 September 2014 and was subsequently convicted of breach of condition of stay by overstaying and taking up unapproved employment and sentenced to a total of 5 months’ imprisonment. 

6.  The applicant raised the NRF Claim by way of written signification dated 16 September 2014.

Director’s Decision

7.  In processing the NRF Claim, the Director took into account the information provided by the applicant in her Non-refoulement Claim Form dated 7 July 2017 and at the screening interview on 7 August 2017. The applicant then had legal assistance and representation from the Duty Lawyer Service.

8.  The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  First, the Director did not accept that the ill-treatment inflicted by Suminten upon the applicant attains a minimum level of severity, having regard to its nature and intensity, the extent of injuries sustained, the medical treatment required and the applicant’s subsequent normal way of life.

(2)  Further, Suminten’s dislike of the applicant, even if established, should have dissipated after the long lapse of time since the applicant ran away in mid 2004.  Suminten is unlikely to have any further interest in the applicant.  The claimed future risk of harm is not well-founded.

(3)  Second, the applicant had not sought assistance from the police or other authorities in Indonesia because she thought they were corrupt and she could not afford to pay any bribes.  There is objective country of origin information (COI) showing that the Indonesian government has been reforming to improve the effectiveness, and monitor the conduct, of the Indonesian police.  The availability of state protection would further lower or even negate the risk (if any).

(4)  Third, the availability of internal relocation options, e.g. to Jakarta or Surabaya where the applicant stayed for 3 years without suffering any harassment from Suminten, would further lower or negate the perceived risks, if any.  There is no indication that Suminten, a farmer, would have the influence or resource to locate the applicant across the country.  And it is not unduly harsh or unreasonable for an able-bodied adult with overseas working experience like the applicant to relocate within Indonesia.

Appeals to Board and Board’s Decisions

9.  The applicant appealed to the Board against the Director’s Decision on 15 August 2017.

10.  After a rehearing on 26 March 2018, at which the applicant testified before, and answered questions by, the Board through an Indonesian interpreter, the Board dismissed the appeal on 8 June 2018. 

11.  In so doing, the Board accepted that the applicant has a genuine subjective fear of Suminten who, the Board further accepted, had mistreated the applicant in the past.  However, the applicant does not face a real risk of any of the proscribed harms from Suminten upon being refouled to Indonesia.  What has to be considered in the applicant’s case is her return to where she lived prior to departing Indonesia, i.e. Surabaya. With a population exceeding 6 million, any risk that Suminten will become aware of the applicant’s whereabouts in Surabaya is remote or speculative. 

Application for leave for judicial review and Judge’s Decision

13.  After hearing the application in open court at which the applicant was present and was assisted by an English/Indonesian interpreter, the Judge refused leave.  His reasons can be found in [9] to [13] of the Form CALL-1:

“9. On 16 July 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 proper ground for seeking relief was given in her Form other than her claim that without providing any particulars or specification or elaboration as to how it was so. 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 to challenge the findings of the Director or the Board.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

11. The fact is that it has been established by both the Director and the Board in their respective decision 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 return to Surabaya or 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.

12. 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.

13. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Appeal to Court of Appeal and grounds of appeal

14.  By the notice of appeal filed herein on 21 September 2020, the applicant appealed against the Judge’s Decision on the following ground (sic):

“The judge of the High Court failed to show any cause to refuse my appeal. Judge did not read my application. Judge did not consider my arguments.”

15.  In her written submission dated 28 April 2021, the applicant simply reiterated in gist the events underlying the NRF Claim and urged this court to understand her problem, which the Director and the Board failed to do.

16.  The applicant appeared in person at the hearing of the appeal on 24 May 2021.  She informed the court that she had undergone brain surgery in November 2019 and is still attending follow-up consultations once a month in Hong Kong.  Her next appointment will be on 6 June 2021.  She has not checked if the same medical treatment will be available in Indonesia.

Court of First Instance’s role in judicial review in non-refoulement claim

17.  The primary decision-makers in a claim for non-refoulement 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 appeal against refusal of leave for judicial review in non-refoulement claim

18.  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 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 generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[5]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, 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

19.  As summarised in [8] and [11] above, the NRF Claim failed on the facts at both stages of the unified screening mechanism. The questions whether the applicant would be at risk of life or torture if she is refouled to Indonesia and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director). 

20.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the findings by the Board.  Given such failure by the applicant, contrary to the criticism in the notice of appeal, the Judge had provided more than adequate reasons for refusing leave. It is also apparent from the contents of the Form CALL-1 that the Judge had read the papers and considered the arguments before him.  There is absolutely no ground for the applicant to complain otherwise in the notice of appeal and written submission.  The application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed.

21.  Other than making unfounded allegations against the Director, the Board and the Judge in the notice of appeal and written submission, the applicant has simply not identified any error of law by the Judge, anyrelevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

22.  Regarding the applicant’s health issue mentioned at the hearing before us, while we have sympathy for the applicant, it does not constitute a reason to allow the appeal.

Disposition

23.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.