SOLIKHIN SUSIYANTI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 392/2019

[2019] HKCA 1368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 392 OF 2019

(ON APPEAL FROM HCAL NO. 1801 of 2018)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 16 August 2019 refusing to grant her leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 24 August 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 19 December 2017 rejecting her non-refoulement claim.

2.  The applicant is an Indonesian national.  She entered Hong Kong on 29 September 2013 and was given permission to remain for employment as a domestic helper until 3 May 2015.  Her employment contract was prematurely terminated on 30 April 2014 and upon her application, she was granted an extension of stay as a visitor until 29 May 2014. However, she did not depart and overstayed since 30 May 2014.  She surrendered to the Immigration Department on 14 May 2015.  On 5 November 2015, she lodged her non-refoulement claim by way of written representation. 

3.  The applicant’s claim is based on her fear that she would be harmed or even killed by her husband as she intended to divorce him.  The applicant’s claim was set out in details in [7] of decision of the Director, and summarised by the Judge in [3] to [4] of the CALL-l Form dated 16 August 2019, [2019] HKCFI 2044.  In gist, the applicant married her husband in 1993 and the couple depended on their respective parents financially.  In or about 2000, the applicant started to work as a domestic helper in Singapore and Hong Kong despite the disapproval of her husband because she wanted to earn money and planned financially for having a baby. The applicant returned to Indonesia in 2005 and then got pregnant.  As the applicant found her husband had no intention to work and support the family, she wanted to divorce him.  The first incident happened when the applicant was in five months’ pregnancy and her husband punched her in her jaw.  After the first incident, her relationship with her husband turned sour and the husband threatened to kill her if she proceeded to divorce him.  The second incident happened when the applicant was in six months’ pregnancy.  She asked her husband for money for pregnancy check-up and her husband became angry and assaulted her.  The applicant suffered back and shoulder injuries and she was prescribed with some medical cream to apply on her bruises which took her 10 days to recover.  The third incident happened when the applicant’s son was six months old.  When the applicant was waiting for bus with her husband, he suddenly hit her from behind and slapped her and hit her face with his fist.  She did not seek medical treatment and only applied some medical cream.  After the third incident, the applicant went to Hong Kong working as a domestic helper. During her stay in Hong Kong from 2006 to 2014, the applicant received death threats from her husband causing her to overstay in Hong Kong rather than going back to Indonesia. 

4.  By the decision dated 19 December 2017, the Director rejected the applicant’s claim having regard to the torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4] grounds.  

5.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 23 April 2018, during which she was assisted by an Indonesian interpreter.  By a decision dated 24 August 2018, the Board dismissed the appeal.  For the reasons set out in [43] to [52] of the decision, the Board found that the applicant’s account to be inconsistent and unreliable.  Even on the basis of the applicant’s account of events, since the husband had not contacted either the appellant or their child over a period of twelve years, the Board did not consider that he would still be motivated to harm or kill the applicant because of the breakdown of their marriage.  Further, her delay in seeking non-refoulement protection in Hong Kong casted doubts about the genuineness of her fear.  For the aforesaid reasons, the Board found that the applicant had failed to establish a case in respect of any of the applicable grounds. 

6.  The applicant filed her Form 86 together with a supporting affirmation on 3 September 2018 seeking leave to apply for judicial review against the decisions of the Director and the Board.  At the applicant’s request, the Judge heard the leave application at a hearing held on 21 March 2019.

7.  In her supporting affirmation, she reiterated the background of her case and advanced the following grounds for seeking relief:

(1)  The Director and the Board failed to conduct sufficient inquiry into the relevant country of origin (“COI”) condition.

(2)  The Director and the Board failed to give reasons for their assessments of her claim on BOR 3 risk and their conclusions were lack of basis.

(3)  The Director and the Board failed to take into account the psychological strain and threats directed to her by her husband.

(4)  The Director and the Board did not provide sufficient basis to conclude that she would not be subjected to risk of torture or BOR 3 risk upon refoulement.

8.  The Judge considered the intended judicial review not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review. He gave his reasons at [13] to [22] of the Form CALL-1 as follows:

“DISCUSSION

The Director’s Decision

13. 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 investigations in the matter. The Board had considered his appeal and made its Decision.

14. 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.’

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

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

The Board’s Decision

17. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She understands English and she understands the Board’s Decision. She considered that she had had a fair hearing before the Board.

18. It is obvious that the Board rejected her evidence in support of her claim.

19. Ground (1) is her opinion without any evidence in support of it.

20. Grounds (2) to (4) cannot sustain because the Board, for the reasons that the Adjudicator had given, simply did not believe her evidence. The Court of Appeal held that facts are to be found by the Director or the Board. See Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14.

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

CONCLUSION

22.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review.  Accordingly, I dismiss her application.”

9.  The applicant filed a notice of appeal on 26 August 2019, which contained the following grounds of appeal:

(1)  The Judge failed to consider her claims of BOR 2 risk and BOR 3 risk and that she would still face the same risks if refouled.

(2)  The Judge failed to conduct sufficient inquiry into the relevant COI condition that the state government could not protect her from her enemy.

(3)  The Judge failed to consider her fear of risk of harm upon returning to her home country.

10.  In her written submissions, she advanced the following grounds of appeal:

(1)  The Director and the Board failed to comply with their duties to make sufficient inquiries into COI and adopted a passive approach in contravention of the high standard of fairness as set out in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

(2)  The Director and the Board failed to take into account and/or give proper weight to the relevant considerations and materials which they should have, failing to which the decisions were illegal.  Further, they had failed specifically to give due regard to:

(a)   the fact that she would face real risk upon refoulement to her home county because of her fear of her enemy and that her life would be in danger;

(b)   the fact that she suffered from severe mental distress for her fear upon refoulement;

(3)  Her claim was not personal or private in nature and she had to fled for her life as the murderer would hunt her wherever she hides in Indonesia.  The Director and the Board failed to assess her fear and there was no clear direction as to the finding that she would not be subjected to persecution upon refoulement.    

11.  We heard the appeal on 3 December 2019.  At the hearing, the applicant added that she wishes to seek protection in Hong Kong until she feels safe to return to Indonesia.

General Principles

12.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as set out by Lam VP in Nupur MST v Director of Immigration [2018] HKCA 524 at paragraph 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 the 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(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 were 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: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(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). See: Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.

Discussion

13.  The grounds of appeal set out in the notice of appeal are unarguable.  Firstly, the Board had rejected the applicant’s case as being not credible and unreliable.  Even on the basis of the applicant’s account, the dispute was solely related to financial and family matters with her husband without any element of state involvement. The alleged violence inflicted by her husband did not attain the minimum level of severity for risk of torture.  Secondly, as rightly pointed out by the Board that the applicant had separated with her husband for over a period of 13 years by now, there would not be any real risk of harm upon her return to Indonesia.  Further, this Court has repeatedly emphasized that evaluation of the claim and evidence and assessment of its merits is a matter for the Director and the Board, who are the primary decision makers.  As such, the applicant’s complaints that the Judge failed to assess his claims on BOR 2 risk and BOR 3 risk cannot sustain and must fail.  We are satisfied that the Judge had carefully reviewed the Board’s decision and we find no errors of law or procedural impropriety or irrationality in either the Board’s or the Judge’s decision that warrants our intervention.

14.  None of the grounds set out in the written submissions was directed to the Judge’s decision and the complaints were mere regurgitation of arguments that were canvassed and duly rejected by the Judge.  They are not viable ground of appeal and were therefore rejected. 

15.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.