RE MUGIYEM TRI LESTARI

CACV 580/2019

[2020] HKCA 292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 580 OF 2019

(ON APPEAL FROM HCAL NO. 916 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1.     This is an appeal against the decision of Deputy High Court Judge Bruno Chan (‘the Judge’) who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (‘the Director’) and the Torture Claims Appeal Board (‘the Board’).

1.2.     This appeal was scheduled to be heard on 5 May 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 6 April 2020, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1.     The applicant is a national of Indonesia.  She arrived in Hong Kong as a foreign domestic helper but she overstayed and was subsequently arrested.  She then raised a non-refoulement claim on the basis that she would be harmed or killed by her abusive husband who indulged in alcohol and drugs and also by her creditor for failing to repay her loan which her husband had forced her to borrow.  The applicant had since divorced her husband.

2.2.     The details of the applicant’s claim have been summarized by the Judge at [2]-[5] of the CALL‑1 Form.

3)  The Director’s Decision

3.     The Director decided against the applicant’s claim on 13 January 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as her other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.1     The applicant appealed against the Director’s decision to the Board.  After a hearing held on 5 March 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 3 May 2018.

4.2.     The Board held that it had issues with the applicant’s credibility.  It held that even on the applicant’s own case, the facts do not pertain to a minimum level of severity under the proscribed risks.  State protection was available and internal relocation was possible.  Her claim failed on all four applicable grounds.  

5)  Decision of the Judge

5.     The Judge held that the applicant’s proposed grounds of appeal were broad and vague assertions without particulars or specifics as to how they applied to her case.  The high standards of fairness did not afford the applicant with legal representation at all stages of her proceedings.

6)  Grounds of appeal

6.     In short, the applicant’s Notice of Appeal stated that there was a lack of BOR 2 assessment.  There was a failure to provide language assistance and legal assistance.  She has no understanding of the process or the reasons for rejecting her claim.  The authorities have been ‘highly discriminatory and unfair’ towards her.

7)  Our view

7.1.     We will repeat the approach of this Court in dealing with cases of this nature :

(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 their decisions.

(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.  In the determination for 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 otherwise plainly wrong.

(3)     In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2.     In our view there are no merits in the applicant’s appeal.  The Board’s decision and the decision of the Judge had already made the position clear at paragraphs [12] to [15] of Form CALL-1.

7.3.     We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.