SITI MUNAWAROH v. TORTURE CLAIMS APPEAL BOARD

CACV 374/2018

[2018] HKCA 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 374 OF 2018

(ON APPEAL FROM HCAL 740/2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock, given on 31 July 2018, by which she refused the applicant leave to apply for judicial review (the ‘Judge’ and the ‘Judge’s Decision’).

PROCEDURAL HISTORY

2.  The applicant is an Indonesian national.  She first arrived in Hong Kong on 7 November 2009.  As a foreign domestic helper, she was permitted to remain until 19 January 2011, or within two weeks of the termination of her employment contract, whichever was the earlier.

3.  The applicant’s contract was prematurely terminated on 25 February 2010, but she did not leave Hong Kong on 12 March 2010 as required.  On 6 March 2011, she was arrested by the police for overstaying.

4.  The applicant lodged a claim for non-refoulement protection.  She, however, stopped complying with the reporting condition and was re-arrested in August 2015.  Her subsequent application to reopen her claim was also rejected by the Director of Immigration on 5 February 2016 and 3 August 2017 (see below).  The applicant then lodged an appeal with the Torture Claims Appeal Board, which appeal was rejected on 29 September 2017 (see below).

5.  On 9 October 2017, the applicant filed an application for leave to apply for judicial review.  She asked for and was given an oral hearing on 9 March 2018, on which occasion the applicant appeared in person.  As said, the Judge rejected her application on 31 July 2018.

BASIS OF CLAIM

6.  The basis of the applicant’s claim was that, if she were to return to Indonesia, she would be harmed or killed by her own family and fellow villagers on account of her conversion to Christianity in 2009.

7.  The facts related to the applicant’s claim were set out by the Judge in the CALL-1 Form at [2018] HKCFI 1726, [4] to [6].

THE DIRECTOR’S DECISIONS

8.  The Director of Immigration first decided against the applicant’s torture claim on 5 February 2016.  The decision covered the applicant’s right under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights, as well as her other statutory and convention rights against torture and persecution (the ‘Director’s Decision’).

9.  By a further decision dated 3 August 2017, the Director also assessed the applicant’s right under Article 2 (right to life) of the Bill of Rights and rejected the applicant’s claim (the ‘Director’s Further Decision’).

THE BOARD’S DECISION

10.  The applicant appealed the Director’s Decision to the Torture Claims Appeal Board which, after a hearing on 21 April 2017, dismissed the applicant’s appeal on 29 September 2017 (the ‘Board’ and the ‘Board’s Decision’).  The Board’s summary finding of facts can be found in the CALL-1 Form at [8] to [10].

THE JUDGE’S DECISION

11.  The applicant filed her Form 86 with supporting affirmation on 9 October 2017.  In brief, the following grounds were advanced against both the Director’s Decision and the Board’s Decision :

•   There was a failure to conduct sufficient and unbiased inquiry into the conditions of the relevant country of origin.

•   There was a failure to consider the concept of extended state acquiescence.

•   There was a failure to consider the personal threats made against the applicant, and their psychological impact on her.

•   There was a failure to consider the inability of the Indonesian police to afford the applicant protection.

•   There was a failure to give sufficient reasons as to why the applicant was not at risk of being subjected to torture, persecution and the deprivation of life.

12.  The Judge’s reasons for refusing leave to apply for judicial review are set out in [11] to [18] of the CALL-1 Form.

THE PRESENT APPEAL

13.  The applicant filed her Notice of Appeal to the Court of Appeal on 7 August 2018.  In essence, she contended that there was a failure on the part of the Board to consider the concept of extended state acquiescence (the ‘Extended State Acquiescence Argument”).  She contended that both the Director and the Board had failed to conduct sufficient inquiry into Indonesia’s country-of-origin information (the ‘COI Argument’).  She contended that there was a failure to consider the severity of her risks of harm (the ‘Severity of Risk of Harm Argument’).

14.  The applicant filed her skeleton submissions on 16 October 2018, in which the applicant repeated some of the facts of the case.  She contended that both the Director and the Board had failed to make sufficient and unbiased enquiries into the conditions of Indonesia, contrary to the high standards of fairness required.  She sought to reargue points that had been considered by the Board and/or the Judge, which included (the ‘Repeated Submissions’) :

•   There is a real risk of harm: she received death threats from fellow Muslims to burn her alive.

•   Indonesia is a Muslim-dominant country : if refouled, there is a real risk that she would suffer harm because she is now a Christian.

•   She could not relocate: there is no place in Indonesia to practice Christianity freely.

•   She suffered mental distress and received no protection from the authorities.

15.  In her skeleton submissions, the applicant also, for the first time, raised the argument that she is now married to a Hong Kong permanent resident and is in the process of applying for a dependent visa (the ‘Dependent by Marriage Argument’).

16.  On 13 November 2018, during a hearing before us, the applicant confirmed that those were the bases of her appeal.

DISCUSSION

17.  We are of the view that the applicant’s appeal has no merit.

18.  There is no merit in the Extended State Acquiescence Argument : the applicant had never made a report to the police or any authority in Indonesia.

19.  There is no merit in the COI argument: the Board had clearly set out the applicant’s evidence as well as the relevant, up-to-date and objective COI.

20.  There is no merit in the Severity of Risk of Harm Argument: it is clearly stated in the Board’s Decision that there was no evidence to show the applicant was subjected to substantial risk of being subjected to any ill-treatment.

21.  The abovementioned three arguments are all within the province of the Board.  The Court will not interfere with the Board’s assessment unless the applicant can establish any public law error in it.  See Re Zunariyah [2018] HKCA 14, Re Lakhwinder Singh [2018] HKCA 246 and Nupur Mst v Director of Immigration [2018] HKCA 524.

22.  The applicant has endeavored to seek leave to appeal against both the Board’s Decision and the Director’s Decision.  In Re Moshsin Ali [2018] HKCA 549, the Court held that the decision of the Director is not susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant. The applicant had already petitioned to the Board against the Director’s Decision. The Court would focus only on the decision of the Board in the application for judicial review.  In any event, the Board’s Decision and the Director’s Decision cover very much the same grounds in the present case.

23.  The Repeated Submissions of the applicant have all been previously considered by the Board and/or the Judge.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the Judge and would only reverse that decision if an appellant can demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

24.  The new Dependent by Marriage Argument is unsupported by evidence.  The applicant cannot advance new evidence in an appeal without leave.  We would reject any attempt to introduce new evidence at this late stage: Re Daljit Singh [2018] HKCA 328, Re Qadir Sher [2018] HKCA 160, United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].  If the applicant is indeed legally married to a permanent resident of Hong Kong, she should apply for a change of status through another channel and not seek to pursue her claim for non-refoulement protection.

DISPOSAL

25.  It has not been shown that there is any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  The Judge was correct to refuse to grant leave to apply for judicial review.

26.  There is no prospect of success in the intended application for judicial review and the appeal is dismissed accordingly.