RE SUKENIH

CACV 556/2019

[2020] HKCA 355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 556 OF 2019

(ON APPEAL FROM HCAL 2501/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 21 November 2019 refusing leave to apply for judicial review (“the Decision”).  The intended judicial review was against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 15 October 2018 and against the decision of the Director of Immigration (“the Director”) dated 30 January 2018, rejecting the Applicant’s non-refoulement claim.

Background

2.  The Applicant is an Indonesian national.  She entered Hong Kong on 25 May 2011 and was given permission to remain as a “foreign domestic helper” until 6 March 2014.  She overstayed and was arrested by the police on 3 February 2016.  She was convicted of the offence of overstaying without permission and was sentenced to two months’ imprisonment, suspended for two years.  She lodged her non-refoulement claim on 15 February 2016[1].

3.  The Applicant’s claim was based on threats from her mother and a loan shark in Indonesia from whom her parents borrowed money.  She claimed that if refouled, she would be killed by her mother and the loan shark because she had no means to repay the debts and refused to marry the loan shark as a replacement for the debts.  The details of the Applicant’s claim have been summarized by the Judge at [2] to [4] of the Form CALL-1 ([2019] HKCFI 2834)[2].

4.  By a notice of decision dated 30 January 2018, the Director rejected the Applicant’s claim.  The Director’s decision covered the torture risk[3], the BOR 2 risk[4], the BOR 3 risk[5] and the persecution risk[6].

5.  The Applicant appealed to the Board.  After a hearing 20 June 2018, attended by the Applicant, the Board rendered its decision refusing the appeal on 15 October 2018.  The Board’s decision covered all four grounds for non-refoulement protection.

The Judge’s Decision

6.  The Applicant filed a Form 86 on 8 November 2018 to seek leave to apply for judicial review of the Director’s decision and the Board’s decision.

7.  The Judge summarized the Applicant’s grounds for judicial review as set out in her affirmation dated 8 November 2018 at [11] of the Form CALL-1 as follows:

(1)  Procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)  Procedural impropriety/irrationality; failure to [provide] reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support the conclusion of lack of BOR 3 risk;

(3)  Error/misdirection in law; failing to take into consideration of psychological strain and threats to her personally or threats to her directly, to kill her; and

(4)  Not sufficient basis to conclude that she was not subjected to torture or BOR 3 risk.

8.  Upon the Applicant’s request, an oral hearing was held on 9 May 2019.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the reasons for his decision at [12] – [20] of the Form CALL-1.

The Appeal

10.  On 4 December 2019, the Applicant filed a Notice of Appeal against the Judge’s Decision.  The grounds of appeal set out in the Notice of Appeal are as follows:

(1)  Failure to consider the Applicant’s fear that she had to face in her country of origin;

(2)  Failure to consider her claim under BOR 2 and BOR 3 risk;

(3)  Failure to consider the country of origin information.

11.  By a letter dated 4 December 2019, the Applicant consented to the appeal being heard by a 2-member court. 

12.  In her skeleton submissions filed on 10 March 2020, the Applicant made the following submissions:

(1)  The Board and the Director failed to comply with their duty to make sufficient inquiries into the country of origin information and adopted a passive approach in contravention of the high standards of fairness “viz. the discharging of the burden of proof as per Li CJ in Prabakar at paras 54-55, and TK at paras 22-23.”[7]

(2)  The Board and the Director failed to take into account and/or give proper weight to relevant considerations and materials including, in particular:

(a)  The fact that she would face real risk upon refoulement to her country of origin because of fear from her enemies; her life would be at danger;

(b)  The fact that she must have been placed in severe mental distress as a result she would definitely face difficulty from her enemies upon refoulement;

(3)  Her claim is not a personal or private dispute.  She fled her country for the safety of her life.  Her enemies would hunt her down wherever she hides in Indonesia.  There are no clear directions why she would not be a subject of persecution upon refoulement.  The Board and the Director failed to assess her fear.

13.  On 19 May 2020, an oral hearing was held.

Legal Principles

14.  The general principles regarding an appeal in a non-refoulement case have been set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [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, country of origin information materials, 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, procedural unfairness or irrationality in the decision of the Board.

(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 before, and rejected, by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489.

(4)  In respect of new argument, this court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(5)  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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

Discussion

15.  Insofar as the appeal concerns the Director’s decision, we agree with the Judge’s decision at [12] and [13] of the Form CALL-1, citing Re Moshsin Ali [2018] HKCA 549, that the Director’s decision was superseded by the Board’s decision and hence not amenable to judicial review.  The Judge was correct to dismiss the application for leave for judicial review against the Director’s decision. 

16.  Before us, neither the Notice of Appeal nor the Applicant’s submissions engage the Judge’s reasons for dismissing the application for leave for judicial review.  On the whole, the Applicant has failed to pinpoint any viable arguments to reverse the Judge’s decision.

17.  In this connection, the general reference to the decision in Prabakar and TK does not assist the Applicant.  The Applicant did not explain how the principles set out in those cases give rise to appealable grounds against the decision of the Judge.  Nor did she explain why this Court should address them when they were not issues before the court below.

18.  In our judgment, the Judge’s decision was correct.  The Board has found that there was no risk of harm of the type contemplated by the four grounds for non-refoulement and that internal relocation was viable.  As mentioned above, these are matters within the province of the Board and the Applicant has not identified any reasonably arguable basis to challenge the Board’s finding.

19.  As the Judge rightly pointed out in [18] of the Form CALL-1, the Applicant has not produced any evidence in support of her complaint against the Board’s assessment and had not raised the issue of psychological strain in the hearing before the Board. 

20.  On the facts of this case, bearing in mind the lapse of time since the Applicant had come to Hong Kong and her evidence on the source of threat before the Board, and the Board’s finding on state protection and viability of internal location at paras 17 and 19 of the Board’s decision, the Judge’s approach was not erroneous.

21.  The Judge, having applied “rigorous examination and anxious scrutiny” of the Board’s decision, was satisfied that the Board came to its conclusion after having carefully considered each of the four grounds for non-refoulement, applying the appropriate statutory provision and the Convention to the facts of the case: see [17] of the Form CALL-1.  The Board had found that the risk of harm to the Applicant upon refoulement is remote and not a real risk.  Even on the Applicant’s own case, this finding seems to us to be correct.

22.  In the circumstances, we agree with the Judge that the intended judicial review had no reasonable chance of success.  The Applicant therefore failed to meet the threshold for leave to be granted as laid down by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

23.  For these reasons, we dismiss the appeal.