RE PIPIN RIYANTI

CACV 623/2020

[2021] HKCA 1441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 623 OF 2020

(ON APPEAL FROM HCAL 2189 OF 2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 12 November 2020 (“Judge’s Decision”) refusing to extend time for the applicant to apply for leave for judicial review and dismissing her application for such leave.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 19 April 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 12 December 2016 (“Director’s Decision”).

Basis 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 35, is a fear of being harmed or even killed by (1) a loan shark for failing to repay the debt of her now divorced husband (“Andi”); and (2) certain followers of Nahdlatul Ulama (“UN”), the largest Muslim organisation in Indonesia.

3.  The circumstances giving rise to such fear have been set out in detail in paragraph 7 of the Director’s Decision and paragraph 2 of the Board’s Decision and in gist in [2] to [4] of the Judge’s Decision embodied in the Form CALL-1 dated 12 November 2020, [2020] HKCFI 2461 (“Form CALL-1”).

4.  Briefly:

(1)     In early 2009, in order to start a business, Andi borrowed from a loan shark (“Creditor”) with gangster background, with the applicant’s father acting as witness and guarantor of the loan. 

(2)     Unfortunately, Andi ceased business in the same year[1]. He defaulted in repayment and was knifed in the right wrist by the Creditor’s gangster associates.  Andi later disappeared.  The Creditor turned to the applicant’s family for repayment.  To exert pressure on them, he once slapped the applicant’s grandmother in the face.  The police refused to intervene in what they considered to be a private money dispute.

(3)     Having found out that the applicant was then working in Hong Kong in 2010, the Creditor’s gangster friends called her almost daily until she changed her telephone number in 2011.

(4)     The problem with the UN followers dated back to approximately 1989.  They demanded the applicant’s family to leave the village because they follow the Muhammadiyah, a rival Sunni Muslim group.  The dispute worsened.  The applicant’s home was vandalised and members of her family were assaulted repeatedly.  The UN followers once poured hot water on the applicant’s right upper arm and physically assaulted her parents.  The police did nothing other than telling them to be careful.

(5)     After hiding with their neighbours for a few days, the applicant’s family returned home.  The UN followers reappeared.  The applicant’s father begged to be allowed to stay.  The UN followers eventually left.

(6)     A peaceful period followed until 2010 when the trouble with the UN followers rekindled.  The applicant’s family was driven out of their house, after 6 to 7 UN followers armed with knives and sticks kicked down their door, kicked the father in the head and threatened to set the house on fire. 

(7)     They stayed with her grandmother for almost a year before the Creditor followed them there to continue to harass the family.  The only help the police rendered was to explain to the Creditor that they were not the ones who borrowed the loan. 

(8)     The applicant’s family was eventually forced to leave her grandmother’s house in about October 2012.  To avoid the Creditor, they went back to their old home, which had by then been turned into the UN followers’ headquarter.  On seeing them, the UN followers threatened to kill them if they dared to move back into the house.

(9)     They eventually moved into a rented place.  They had never encountered the Creditor at the new place.  The applicant’s father is still living there.

(10)    The applicant came to Hong Kong again for employment.

(11)    After her departure, the Creditor kept going to her grandmother’s house to demand to be told the family’s whereabouts and to threaten to definitely kill them if they failed to repay Andi’s debt.

Overstaying in Hong Kong and lodgment of NRF Claim

5.  The applicant arrived in Hong Kong on 6 March 2014 to work as a foreign domestic helper.  Her contract was prematurely terminated on 4 November 2015.  Instead of leaving within 2 weeks, the applicant overstayed since 19 November 2015.  She surrendered to the Immigration Department on 24 November 2015.  She raised the NRF Claim by written representations dated 25 July 2016 and 22 August 2016.  

Director’s Decision

6.  After considering the information provided by the applicant in her Non-refoulement Claim Form dated 9 November 2016 and at the screening interview in the presence of a representative of the Duty Lawyer Service on 1 December 2016, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

(1)     First, based on the low intensity and frequency of the past ill-treatments, (1) the risks of future harm from the Creditor and the UN followers upon the applicant’s return to Indonesia were assessed to be low; and (2) such ill-treatments, whether physical or mental, did not attain a minimum level of severity.

(2)     Second, there is no indication that the state was involved. Both the difficulties with the Creditor and the UN followers were private disputes.

(3)     Third, the availability of state protection would lower or even negate the risk.  There is objective country of origin information (COI) showing that the Indonesian government has initiated reforms to improve the human rights situation in Indonesia.  The misconduct of some policemen at one police station does not demonstrate that the Indonesian police as a whole condoned the ill-treatments inflicted by the Creditor on the applicant’s family.  The attacks by threats from the UN followers were never reported to the police.

(4)     Fourth, the perceived risks, being localised, can be reduced by internal relocation within a large populous country like Indonesia. The applicant, an able-bodied adult with overseas working experience, would suffer little or no hardship in moving to say Jakarta.

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board.

8.  The Board conducted a rehearing of the NRF Claim on 26 February 2018, from which the applicant was absent.  The applicant did not respond to the Board’s subsequent inquiry about the reason for her non-attendance either.  

9.  That being the case, after considering all the evidence before it, the Board dismissed the applicant’s appeal on all 4 applicable grounds for non-refoulement protection.  In summary,the Board had serious concerns regarding the integrity of the NRF Claim and found it to have been fabricated by the applicant in order to extend her stay in Hong Kong. 

(1)     The Board did not accept that the UN followers would act in the violent and extreme manner suggested by the applicant and then allowed her family to remain in the house for a further 21 years.

(2)     The length of peace between the first attack in 1989 and the fresh troubles 21 years later in 2010 was unbelievable.

(3)     It is also inexplicable why the applicant’s family would go back to their old house in October 2012, instead of going somewhere fresh and safe.

(4)     The evidence on the claim based on the alleged danger from the Creditor was extremely limited. The applicant could not name him and had never met him in person.  While her father had agreed to be a guarantor, the applicant and her grandmother had nothing to do with Andi’s debt, which made the applicant’s allegations that she suffered harassing phone calls almost everyday for 1 to 2 years and that her grandmother had been harassed for more than 8 years unconvincing.

Application for leave for judicial review and Judge’s Decision

10.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued out of time under HCAL 2189/2018 on 10 October 2018, the applicant applied for judicial review of the Board’s Decision[6] without stating any proposed ground for relief.

11.  However, in the supporting affirmation filed on the same date, the applicant made a number of complaints which the Judge summarised in [10] of the Form CALL-1:

 (1)     Lack of legal representation in her appeal before the Board;

 (2)     Lack of language assistance in her preparation for the appeal before the Board or for translating the Board’s Decision to her so that she could properly understand the reasons for the rejection of the NRF Claim;

 (3)     Error in the Board’s Decision in finding that it would be reasonable for her to relocate elsewhere in Indonesia without indicating the level of safety in such a geographically large area and a huge population in Indonesia;

 (4)     That the Director had cherry-picked the COI in order to rebut the NRF Claim. The same COI was used to reject her case but at the same time they show how the Indonesian authorities are corrupt and guilty of malpractice; and

 (5)     Procedural unfairness in finding that state protection would be available to the applicant when her personal experience showed that it is not the case.

12.  After a hearing in open court, the Judge refused to extend time and dismissed the application for leave for judicial review.  He set out his reasons in [13] to [24] of the Form CALL-1:

“13. In the Applicant’s case, a delay of 11 weeks must be considered as substantial, for which she explained at the hearing that she did not receive the decision as she had changed her address at that time in early 2018, and hence she was not aware of the decision until later when she was informed by an immigration officer when by then she was already out of time with her intended application.

14. The record however shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence in support of her claim, and it was her duty to always inform the authorities of any change to her address, I am not satisfied with her explanation that she did not receive the Board’s decision.

15. As to the merits, if any, of her intended application regarding the complaints in her proposed grounds, starting with Ground (1) of not being provided with legal representation in her appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

16. The Applicant already had the benefit of legal representation in presenting her case to the Director, but when it came to her appeal hearing before the Board, she chose not to attend the scheduled oral hearing when she could have been able to make further representation regarding her claim, nor did she provide any explanation for her absence. In the circumstances I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

17. As for her complaint under Ground (2) of not being provided with language assistance in her appeal to the Board including translating the Board’s decision for her which cannot per se be accepted as a proper ground for challenging the decision, it is clear that the Applicant did have assistance in the preparation of her present application which are all written in English. As such and in the absence of any particulars or specifics to demonstrate that the basis of her claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

18. Regarding her complaint in Ground (3) that there is no basis for the Board to find that it would be safe for the Applicant to relocate to other part of Indonesia in view of its geographically large area and huge population, given the nature of the localized threats based on her own case and in the absence of any state or official involvement in those threats, these are clearly relevant factors which the Board was entitled to take into account in assessing her claim, and I do not find any reasonably arguable basis for this complaint of the Applicant.

19. As for her complaint in Ground (4) over the Board’s reliance of COI in its assessment of her claim, the Applicant has failed to provide any particulars or specifics in support of her complaint, and upon examination of those COI referred in the Director’s decision and before the Board, I do not find any merit or basis in this complaint of the Applicant either.

20. Similarly, regarding her complaint under Ground (5) of the finding that state/police protection would be available to her upon her return to Indonesia, the Applicant again failed to provide any particulars or elaboration as to what procedural unfairness was there in such finding or assessment in particularly when she chose not to appear at her oral hearing before the Board to make her representation, nor did she do so even in her application now before me. As such and having examined the COI relied on by both the Director and the Board in their decisions, again I do not find any reasonably arguable basis in this complaint of the Applicant for her intended challenge either.

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

22. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her 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.

23. 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.

24. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her significant delay, I refuse to extend time and accordingly dismiss her leave application.”

Appeal to Court of Appeal - grounds of appeal and submission

13.  The applicant repeated the exact same grounds put forward by her in the affirmation before the Judge in the notice of appeal filed herein on 25 November 2020.

14.  In breach of paragraph 4(1) of the directions given by the Registrar of Civil Appeals on 23 June 2021, the applicant failed to lodge skeleton submission 28 days before the scheduled hearing of the appeal on 20 September 2021, despite having been warned in paragraph 5 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

15.  Practice Direction 4.1 requires the lodgment of skeleton submission in a civil appeal.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power by the presiding judge in an appeal, including the effective management of the oral hearing. Nowadays, this court no longer tolerates unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times, this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

16.  The hearing date of 20 September 2021 was therefore vacated and the applicant was debarred from lodging any written submission.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

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)].

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.  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)].

19.  Hence, we will focus our attention on the Judge’s Decision.

20.  As noted above, by way of grounds of appeal, the applicant simply regurgitated the exact same matters raised in the application for leave for judicial review before the Judge.  Those grounds target only the Director’s Decision and the Board’s Decision. 

21.  The applicant did not in the notice of appeal before us identify any arguable error of law by the Judge, any relevant 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.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that they are both in order.

Disposition

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