RE DIVI DIAH NINGRUM

CACV 119/2018

[2018] HKCA 438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 119 OF 2018

(ON APPEAL FROM HCAL NO. 817 of 2017)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 20 April 2018 refusing her leave to apply for judicial review.  The intended judicial review is in respect of: (1) the decision of the Director of Immigration (“the Director”) dated 30 April 2015 rejecting her non-refoulement claim; (2) the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 13 December 2016 dismissing the applicant’s appeal against the Director’s decision of 30 April 2015; and (3) the Board’s decision dated 13 October 2017 dismissing her claim against the Director’s further decision dated 31 March 2017.

2.  The applicant has consented to her appeal being heard by a two-judge court.

3.  The applicant is an Indonesian national.  She came to Hong Kong on 11 November 2010 and was permitted to remain as a domestic helper until 11 November 2012, or two weeks after the termination of her employment contract, whichever was earlier.  The applicant’s employment contract was terminated prematurely on 10 February 2011.  She was arrested on 12 February 2011 for theft.  She failed to answer bail and a bench warrant was issued for her arrest.  She was later re-arrested, and convicted and sentenced in the theft case to six weeks’ imprisonment.  After her discharge from prison on 7 June 2013, a removal order was issued against her on 22 July 2013.  On 13 April 2014, the applicant lodged a non-refoulement claim.

4.  The applicant’s claim was based on her fear that, if she was to be refouled to the Indonesia, she would be harmed or killed by moneylender because of her mother’s failure to repay her debts.  According to the applicant, after her parents had divorced, her mother left home to work to support the family, and she has not seen her since.  She lived with her grandmother.  After she left school in 2006, she married a man through a religious ceremony not recognised by law.  They had a daughter in 2008.  Between September or October 2008 and November 2010, there were seven visits by some unknown males to her grandmother’s house where the applicant lived. They demanded repayment of debt owed by her mother, which ran to the tune of 15 million Rupiah.  During those visits, the applicant was verbally abused, threatened, molested, slapped in the face, and hit with bamboo stick.  On none of the occasions did the applicant receive medical treatment.  Neither had she made any report to the police.  Out of fear and to provide financial support to the family, the applicant decided to come to Hong Kong to work.  She underwent three months’ domestic helper training and came to Hong Kong in November 2010.  Her husband was unhappy with her departure from Indonesia and re-married.  She also lost contact with her grandmother.  In August 2014, the applicant gave birth to a girl in Hong Kong.    

5.  By a Notice of Decision dated 30 April 2015 (“the Director’s First Decision”), the Director rejected the applicant’s claim.  The Director considered that in the light of the mode of attack and the applicant’s injuries, the intensity of ill-treatment was low.  Given also the low frequency of the visits, the behaviour of the moneylender’s people and that nothing was done to the grandmother on the occasions when the applicant was not at home, the Director assessed the level of risk of the applicant being subjected to harm or ill-treatments from the moneylender was low.  The Director also took the view that the availability of state protection and the viability of internal relocation would lower or negate the perceived risk of harm.  Furthermore, the Director noted that the applicant’s claim was based on a financial dispute within a private and personal context, and there was no suggestion of any involvement, consent or acquiescence of government authorities.  The Director concluded that the applicant’s non-refoulement claim was not made out having regard to the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]. 

6.  The applicant appealed to the Board against the Director’s First Decision.  An oral hearing took place on 24 February 2016, during which the applicant had given evidence.  By its decision dated 13 December 2016 (“the Board’s First Decision”), the Board dismissed the appeal.  The Board considered there was no evidence of threat or harm being instigated by or carried out under state authority, the ill-treatments said to have been suffered by the applicant did not satisfy the legal requirement of minimum level of severity, and internal relocation was a viable option for her.  The Board also found there was no substantial ground to believe the applicant would face future risk of serious harm and state protection was reasonably available.  Additionally, and independent of the above reasons, the Board considered the applicant’s story unreliable, and she was neither an honest witness nor a genuine claimant. 

7.  By a Notice of Further Decision dated 31 March 2017 (“the Director’s Further Decision”), the Director also assessed the applicant’s claim on the ground of the BOR 2 risk^[4].  As the applicant did not respond to the Director’s invitation to provide additional information for her BOR 2 risk, the Director’s assessment was based on the primary materials prepared for the other applicable grounds for her non-refoulement claim.  The Director decided against the applicant.

8.  The applicant again petitioned to the Board against the Director’s Further Decision.  By its decision dated 13 October 2017 (“the Board’s Second Decision”), the Board upheld the Director’s Further Decision without a hearing.

9.  The applicant filed her Form 86 on 27 October 2017 seeking leave to apply for judicial review against the Director’s First Decision and the Board’s First and Second Decisions.  The applicant’s supporting affirmation filed on the same day contained the following grounds:

(1)  Lack of legal representation in the appeal before the Board and the BOR 2 determination by the Director, amounting to violation of the high standard of justice and miscarriage of justice.

(2)  Lack of language assistance in that she was not provided with a translation of her non-refoulement claim form.

(3)  It was unfair that her appeal against the Director’s Further Decision was determined by the same adjudicator who dismissed her appeal against the Director’s First Decision since he was biased against her, having commented in the Board’s First Decision that the applicant was dishonest, her story was unreliable and she was not a genuine claimant.   

10.  The Judge dismissed the leave application on 20 April 2018 after an oral hearing.  The Judge gave the following reasons for refusing leave at [13] to [16] of the CALL-1 Form:

“13.  For the first ground of no legal representation in her appeal before the Board or her claim before the Director on BOR 2 risk, the Court of Appeal has 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: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 176.

14.  The applicant already had the benefit of legal representation in presenting her case to the Director at least up to his first decision on all applicable grounds except BOR 2 risk, and also gave evidence in her appeal before the Board and was able to answer questions put to her by the adjudicator for the Board without any difficulty, and even now in her leave application for judicial review including an oral hearing in which she attended to present her case, she never stated or outlined what further information or argument which she wished to make but unable to do so either before the Board or the Director on BOR 2 risk. I am of the view that on the facts of the case the assessment of her claim under BOR 2 risk could effectively be made on the same materials presented on her behalf with the assistance of lawyers as before, and I do not find anything amiss arising from the non-availability of legal representation in those process of her claim.

15.  Regarding ground (b) in which the applicant complains of not being given any translation of her NCF for her to find out if the interpreter had translated the basis of her claim properly, bearing in mind that she was then already having legal representation and that her NCF was completed with legal assistance as well as in all her subsequent screening interviews before the Director, and in the absence of any specifics from the applicant as to which, if any, part of the basis of her claim may have been incorrectly interpreted or translated, I find her complaint as merely speculative and without any merit.

16.  As for the last ground in which the applicant complains that her second appeal to the Board against the Director’s decision to reject her claim under BOR 2 risk should have been heard by a different adjudicator after the first adjudicator had found her dishonest and not a genuine claimant and was therefore obviously biased against her in her second appeal to the Board, it is relevant to note that the adjudicator dismissed her second appeal on BOR 2 risk not on the basis of her credibility but rather on the lack of additional materials from the applicant in support of her claim, as he explained in his decision of 13 October 2017:

‘8.  As the Applicants have been given the opportunity by the Director to provide further materials and submissions (even though they have provided none), and now have had the opportunity to write to the TCAB. Their case is abundantly clear now as was before the TCAB previously. I cannot see the need or the justification to organize yet another oral hearing merely to re-canvass the same case as has already been dealt with and disposed of before. As the Court of Appeal has said, ‘The time and resources spent on these cases is immense. It is to the interest of all parties that these cases should be disposed of promptly and efficiently’ AW v Director of Immigration CACV 63/2015. In today’s case, the issue under BOR2 Risk can more than adequately be considered and dealt with on paper.

9.  Having studied the case, including the Applicants’ NOA, for all the reasons stated in the TCAB’s Decision dated 13 December 2016, all of which are applicable in a decision on BOR2 Risk, I do not find the Applicant to have succeeded in establishing their case under BOR2 Risk even bearing in mind that the standard of proof in this type of proceedings is relatively low.’

17.  On the facts of her case before the Director and the Board, the adjudicator was entitled to reject the applicant’s claim under BOR 2 risk, and I do not see anything amiss for the same adjudicator to deal with her such claim, or any justification in the circumstances for another adjudicator to deal with the claim.

18.  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 if law or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.  For the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

11.  In the Notice of Appeal filed on 30 April 2018, the applicant stated that she would like to review the decision made by the Director and that they disregarded her dangerous situation.

12.  In her Skeleton Submission, the applicant made the following points:

(1)  She was threatened and beaten for not being able to repay the loan, and she came to Hong Kong to escape from the possible death threats by the moneylender.  She had since set up a new family in Hong Kong.  If she and her daughters were to return to Indonesia, they would be exposed to danger. The moneylender would kill her and sell her children as trafficking of women and children for commercial sexual exploitation and forced labour is prevalent in Indonesia. 

(2)  The Country of Origin Information (COI) cited by the Board displayed cultural insensitivity and lack of understanding of the actual situation in Indonesia.  As Indonesia is a Muslim country, children born out of wedlock would be discriminated against, despised and even given away and killed. Without the protection of her partner in Hong Kong, her and her children’s situation in Indonesia will be even more life-threatening. 

(3)  Her application for non-refoulement is based on the fact that women who do not marry in accordance with proper Muslim way and children born out of such unions are treated as outcasts and face life-threatening danger.    

13.  Other than the point that she had been threatened and assaulted by the moneylender’s people and she left Indonesia for Hong Kong out of fear, the other points now made by the applicant in this appeal have not been raised with the Director in the screening process nor with the Board in her appeals.  It is therefore incorrect for her to say that her non-refoulement claim is based on the danger faced by women who are not married by proper Muslim ceremony and their children.  Importantly, too, the arguments the applicant advances in this appeal do not form part of the grounds of her application for leave to apply for judicial review. 

14.  This Court has repeatedly emphasised that judicial review does not operate as a rehearing of a non-refoulement claim. 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.  The Court will not usurp the role of the Director and the Board as the primary decision maker: 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; and Re Masoom Parvez [2018] HKCA 163.

15.  While it may be that the applicant’s personal circumstances have changed since she lodged her non-refoulement claim, her attempts in this appeal to introduce new facts and new basis for her non-refoulement claim will not serve to advance her appeal.  In the first place, the arguments about trafficking of women and children in Indonesia, and the discrimination, hardship and danger faced by women not married in accordance with proper Muslim ceremony and their children in general, and by her and her two children born in Hong Kong in particular, had not been raised by the applicant before the Director or the Board.  It would not have been open to her to advance them as grounds in support of her application for leave to apply for judicial review application.  Secondly, in view of the fact that she had not raised these grounds before the Judge, it is not permissible for her to advance them in this appeal.    

16.  As to the applicant’s complaint that she had been subjected to threats and assaults by the moneylender people, her account on the several incidents had been considered by the Director in detail.  The Director found, and his view was shared by the Board, that the intensity of the ill-treatments and the level of risk of harm was low.  For the reasons given by them, we are of the view that it was open to the Director and the Board to conclude that there is no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatment that will meet the high threshold as required by law, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].  The Director and the Board had further found, which cannot be disputed, that the applicant’s dispute with the moneylender was purely financial and personal in nature, with no involvement, consent or acquiescence of government authorities.     

17.  Having considered the applicant’s skeleton argument, her oral submissions as well as the materials before us, we can see no error of law or impropriety in the procedure in the process before the Director and the Board. Nor is there any reasonably arguable basis to challenge the fairness of the process.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and leave to apply for judicial review should be refused. 

18.  Accordingly, we dismiss the appeal.