RE FITRI WIDIANWATI

CACV 56/2022

[2022] HKCA 885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 56 OF 2022

(ON APPEAL FROM HCAL NO 256 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”)  on 19 January 2022[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 24 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 14 December 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is an Indonesian national.  She was employed in Hong Kong as a domestic helper until 21 May 2011 when her contract was terminated.  She did not depart, and overstayed.  The applicant was arrested by police on 23 September 2011 and was referred to the Immigration Department on 25 September 2011.  She raised a non-refoulement claim by written representation on 26 March 2014 and lodged a non-refoulement claim form under the Unified Screening Mechanism on 23 November 2017.

3.  The applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed by loan sharks for failing to repay loans.  The factual background was set out at [13] to [25] of the Board’s decision.

4.  By notice of decision dated 14 December 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 30 October 2018, during which the applicant gave oral testimony with the assistance of an Indonesian language interpreter.  The Board found that the applicant was not a truthful witness, because her evidence during the hearing was vague and significantly inconsistent with her prior evidence given to the Director.  Such significant inconsistencies included discrepancies as to the amount and particulars of her debts, what year she lost or severed contact with her family in Indonesia, and whether she was beaten on many occasions by the loan shark(s).

6.  During the hearing, the Board drew the applicant’s attention to such inconsistencies in her account, and advised the applicant that the Board had serious concerns that her claims had been fabricated.  However the applicant indicated she had nothing to say in response.[6]

7.  In any event, the Board also found that internal relocation was a viable option for the applicant. Thus the Board found that there was no real risk of harm in the event of refoulement and, on 24 January 2019, dismissed the applicant’s appeal in relation to all the applicable grounds.

Decision of the court below

8.  On 28 January 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In her Form 86 and supporting affirmation, however, the applicant failed to set out any grounds for judicial review.

9.  Following consideration of the documents only, on 19 January 2022 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [21] – [26] of the Form CALL-1 as follows:

“ 21. In her affirmation filed in support of her application, the Applicant exhibited the Director’s Notice and the Decision of the Board and some documents from the hearing bundle placed before the Board. Obviously, she disagreed with those decisions, but she did not put forward any specific grounds in support of her intended application for judicial review. Presumably, she is seeking to challenge the Board’s conclusion and finding of fact.

22. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to Indonesia. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Indonesia and that in any event state protection and internal relocation are viable options to prevent or avoid the risk.

23. The function of the court in judicial review is not to re-assess the non-refoulement claim afresh. 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 court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.

24. When assessing her credibility, the Board have regard to the loan sharking activities in Indonesia, the relevant factors which may be taken into account as damaging the credibility of the applicant as set out under section 37ZD of the Immigration Ordinance, the Principles, Procedures and Practice Directions of the Board, the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. It also had regard to judicial guidance in terms of the potential difficulties faced by asylum seekers and acknowledged that decision makers should adopt a reasonable approach in terms of making findings with regard to credibility. It gave allowance to the Applicant’s failure to recall dates due to lapse of time.

25. The Court was satisfied that the Board had correctly set out the four applicable grounds under the USM for claiming non-refoulement protection, had properly referred to and correctly applied the applicable legal principles, including the standard of proof and burden of proof, and quoted relevant precedents in support. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims. The Applicant’s claims are founded on her alleged debt owed to the loan shark and the threats the loan shark made against her and her family members. The Decision of the Board was based on its finding of the Applicant’s credibility. The Board had carefully weighed the evidence and assessed her credibility, but found against her. The Board found her incredible and did not accept her evidence about the threats to her life and her assertions of risks under the four applicable grounds under the USM. As the Applicant bears the burden of prove of her claims, such a finding is fatal.

26.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s conclusion was utterly without fault.  There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.  The Applicant’s claim was not reasonably arguable.  There was no realistic prospect of success.”

Appeal to this Court

10.  On 28 January 2022, the applicant filed a Notice of Appeal against the Judge’s decision, in which she raised the following grounds of appeal:

(1)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in this case, which led to an unfair outcome of rejecting the non-refoulement claim;

(2)  the Director, the Board and the Court failed to take such argument into account or give it sufficient weight before rejecting the claim;

(3)  the Board failed to make sufficient enquiry before finalizing its determination, and stated that the applicant failed to advance any credible evidence to prove material elements of her claim;

(4)  the Board failed to give sufficient opportunity for the applicant to arrange relevant evidence for her claim and appeal;

(5)  the gravity of the applicant’s circumstances has not been weighed or realized by the Director and the Board when considering the non-refoulement claim, and the applicant should be given an opportunity to plead her case properly.

11.  However, the applicant did not provide any particulars in support of her grounds of appeal.

12.  The applicant lodged written submissions on appeal on 19 April and 3 May 2022.  In those submissions, she briefly referred to the factual basis and the procedural history of her claim.  She also submitted that the Board did not give her enough time to prepare or to answer its questions, asked questions unrelated to her claim, did not provide her with a lawyer, and became her opponent (i.e. took an adversarial stance).  Further, the applicant submitted that the interpreter was not good, and that the Board gave its personal decision but without describing any law.  Thus, the applicant argued that Judge’s decision was not correct.  However, she did not provide any details or particulars in support of her arguments, or identify any specific errors in the Judge’s decision (other than that he agreed with the Board).

13.  At the hearing of the appeal, the applicant stated that she had nothing to add to the written materials.

Discussion

14.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review. 

15.  As mentioned earlier, the applicant did not in her Notice of Appeal or submissions provide any particulars in support of her grounds of appeal or written arguments, or identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

16.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge’s decision, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due in part to its adverse finding as to the applicant’s credibility, but more importantly due to its finding that internal relocation was viable in any event.  Thus the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board.  The court will not interfere with such assessments unless they are vitiated on public law grounds.

18.  The applicant has not raised any potential errors or concerns as regards the Board’s assessment of credibility.  In any event, whether or not the applicant was a credible witness, the viability of internal relocation is fatal to her claim.  There are no valid public law grounds for interfering with the Board’s assessment on the viability of internal relocation. 

19.  As for the applicant’s arguments that the Board did not provide her with a lawyer and that the interpreter at the Board hearing was not good, these arguments do not assist her in this appeal.  Whether the level of legal or language assistance provided would result in unfairness depends on the circumstances.

20.  The applicant was legally represented and provided with language assistance on her claim before the Director.  On appeal, the Board’s decision was based on its assessment of the applicant’s oral evidence at the Board hearing compared with her previous evidence presented to the Director, as well as on country of origin information.

21.  In the circumstances of this case, it is difficult to see how the level of legal or language assistance provided in fact resulted in unfairness.

22.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave, as there is no reasonably arguable ground for judicial review of the Board’s decision.

23.  For these reasons, the applicant’s appeal is dismissed.