RE SUNARSIH

CACV 533/2018

[2019] HKCA 376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 533 OF 2018

(ON APPEAL FROM HCAL 306 OF 2018)

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J U D G M E N T

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

The appeal

1.  This is an appeal by the abovenamed applicant, Ms SUNARSIH, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 19 October 2018 refusing her leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“Board”) given on 22 February 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”) by a notice of decision dated 17 February 2016 and a notice of further decision dated 8 August 2017 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Indonesia and a Muslim now aged about 35, is a fear of ill-treatment from (1) her husband, Purwanto; (2) her husband’s creditor(s); (3) her parents-in-law; and (4) her teenage son, Sebastian, if she is returned to Indonesia.  Such alleged fear is said to arise out of the following circumstances:

(1)   The applicant married Purwanto in 1999.  The marriage was arranged by their parents.  The applicant gave birth to a son in around 2003.

(2)   In around 2004/2005, Purwanto became alcoholic and abusive towards the applicant.  He would slap and punch the applicant who suffered from bruises and swellings.  On several occasions, the applicant had to go to the local clinic and was prescribed some ointments and painkillers.  The applicant recovered from the injuries inflicted by Purwanto within a couple of weeks.  The applicant had not reported the domestic abuse by her husband because she believed the Indonesian authorities were corrupt and would not interfere in a domestic dispute.

(3)   The applicant’s relationship with her parents-in-law (with whom she lived) was not harmonious either.  While they never physically abused her, they often criticised her for not working after she got pregnant and for not being a perfect wife for Purwanto.

(4)   In April 2008, the applicant started to work as a foreign domestic helper in Hong Kong to get away from her husband and parents-in-law.  She changed employer in around November 2008.  Her 2^nd employment contract also came to a premature termination on 23 June 2009.

(5)   In the meantime, Purwanto borrowed money from moneylender(s)[1] and demanded the applicant to remit funds to help him make repayment.  Purwanto informed her that the moneylender(s) had found out that she was working abroad and insisted that he asked her for repayment money.  However, when asked at the screening interview if Purwanto had threatened her, the applicant said Purwanto simply reminded her to send him money.  The applicant sent Purwanto HK$300 a month from June 2008 until she lost her job in June 2009.  The applicant is concerned that Purwanto would put pressure on her to settle his loan(s) if she returns to Indonesia.

(6)   The applicant had lost contact with Purwanto and their son after termination of her second employment contract in June 2009.  Attempts to re-establish connection by various means from time to time have so far failed.

(7)   She has started a relationship with a fellow non-refoulement claimant, a Somali man called Fuad Hasan, in Hong Kong in around 2014.  Nobody knows about the relationship and she has no intention to end the same, though it is forbidden under Islamic Law.  So she is afraid that she would be tortured or killed by Purwanto and his family if she returns to Indonesia when they become aware of the affair.  She further fears rejection by her son because of such extra-marital relationship.

Entry into Hong Kong and lodgment of NRF Claim

3.  As stated above, the applicant entered Hong Kong in April 2008 with permission to remain as a foreign domestic helper.  She did not leave Hong Kong within 2 weeks as required by her conditions of stay when her 2^nd employment contract also came to a premature end on 23 June 2009.  She was arrested by the police on 6 December 2010 for overstaying and for possession of an identity card relating to another person, for which she was convicted and sentenced to imprisonment for 8 months on 10 December 2010.  The applicant lodged a claim for protection from torture risk under article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Claim”) by way of written representations in March 2011 while in prison.  She was released from prison on 16 May 2011.  A removal order was made against, and served on, her in May/June 2011.  She was released on her own recognizance but had failed to report to the Immigration Department since 6 November 2012.  No action was taken on the Torture Claim as the applicant had absconded and failed to attend the screening interview.  She was re-arrested by the police on 27 March 2014.  She lodged the current NRF Claim by written representation on 4 April 2014.

Director’s Decision

4.  In processing the NRF Claim, the Director’s representative interviewed the applicant who had legal assistance from the Duty Lawyer Service.

5.  The 1^st Director’s Decision covered torture risk[2], persecution risk[3] and “BOR 3” risk[4].  The Director found the NRF Claim to be not substantiated:

(1)   First, the level of risk of harm faced by the applicant was assessed as low.  The applicant’s parents-in-law and son had never inflicted any physical harm upon her whereas the injuries caused by Purwanto did not meet the minimum level of severity.  Under the Indonesian criminal code, an adulterer or adulteress would only be prosecuted upon complaint by the insulted spouse within 3 months of a demand for divorce.  In the applicant’s case, Purwanto had no knowledge of her extra-marital affair.  As for Purwanto’s creditors, the applicant never had any personal encounter with them and had no legal obligation to repay Purwanto’s debts.  The fact that the applicant chose not to proceed with the Torture Claim was inconsistent with a genuine fear of imminent danger or harm. 

(2)   Second, the objective country of origin information (COI) shows that there are services and resources available to victims of domestic violence in Indonesia. 

(3)   Third, such material further shows the availability of state protection, which would further negate or lower the level of risk.

(4)   Fourth, many reasonable internal relocation alternatives are available. 

6.  Following the 1^st Director’s Decision, by a letter dated 12 June 2017 (“12.6.2017 Letter”), the applicant was invited to submit additional relevant facts on or before 26 June 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable grounds.  The applicant did not respond to such invitation.  In the absence of additional information, by the 2^nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[5].

Appeal to Board and Board’s Decision

7.  The applicant appealed to the Board on 29 February 2016 after the 1^st Director’s Decision.

8.  The Board conducted a rehearing of the NRF Claim on 18 September 2017, at which the applicant testified and answered questions by the Board with the assistance of an Indonesian interpreter.

9.  The Board’s Decision covered torture risk, persecution risk, “BOR 2” risk[6] and “BOR 3” risk.  The applicant was found to have failed to make out a case on the facts in respect of all these grounds.  Briefly, the applicant’s past experiences with her husband and his parents do not amount to the kinds of harm for which protection can be sought under a non-refoulement claim.  Nor is it suggested that her husband’s creditors have harmed anybody in relation to the unpaid debts.  Further, on her own admission, the applicant has had no contact with her husband, son or parents-in-law since 2009.  She confirmed at the hearing before the Board that she has no intention of going back to where her family is living even if she goes back to Indonesia.  Even if the applicant had been able to show that she faced a real or genuine risk of harm as claimed, the Board would have found that such risk was confined to the local area where she had lived.  The applicant has many options for relocation in Indonesia.  There is no indication that her husband or his parents or creditors would be prepared to spend time and resources trying to locate her.  Anyway, it would be very difficult for them to do so in such a large and populous country.

Application for leave for judicial review and Judge’s Decision

10.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 306/2018 on 27 February 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision.  By the Form 86 and the applicant’s affirmation of the same date as well as submissions on 31July 2018, the applicant advanced the following grounds for judicial review:

(1)   that the Director and the Board wrongly assessed her claim and their decisions were not reasonable or fair by the Wednesbury test;

(2)   that the Board failed to give her sufficient time and opportunity to arrange relevant evidence to support her claim and appeal;

(3)   that the Director and the Board failed to apply high standards of fairness when she was not given any legal assistance for her claim in respect of “BOR 2” risk before the Director or in her appeal to the Board; 

(4)   that the Director’s decision to reject her “BOR 2” risk claim was unfair or unreasonable because she was not aware of the Director’s invitation to her to submit additional facts relevant to such claim so that she was deprived of the opportunity to do so;

(5)   that it was unfair or unreasonable that none of the documents in the hearing bundle provided to her for her appeal to the Board had been translated or interpreted to her; and

(6)   that the Board had wrongly concluded from the COI that it would be safe for her to relocate in her home country as they do not show the level of safety in Indonesia. 

11.  The Judge’s reasons for refusing leave after an oral hearing can be found in [11]-[19] of the CALL-1 form dated 19 October 2018, [2018] HKCFI 2299 as follows:

“11. Some of these grounds such as (1), (2) or (6) are just vague and bare assertions without any particulars or specifics or elaboration by the applicant as to how or in what ways were the decisions of the Director or the Board unfair or unreasonable, or how were the COI wrong or inaccurate in assessing her relocation options in Indonesia, or how she was not given any time or opportunity to present her claim or supporting materials of which she never raised any issue or request for time at her oral hearing before the adjudicator. I do not find any basis or merits in such complaints of the applicant.

12. As for her complaint of not being provided legal representation in her claim under BOR 2 risk before the Director or 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 37, and Re Zafar Muazam [2018] HKCA 176.

13. The applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty. 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.

14. As for her complaint of not being provided with a translation of the documents in her hearing bundle for her appeal before the Board, she should be well familiar with most of those documents such as her NCF, record of her screening interview, and the Director’s decisions which had earlier already been made available to her when she still had legal representation, while her NCF was clearly completed on her instructions by her lawyer, and that at her oral hearing before the Board she never raised any issue of translation or made any request to the adjudicator for the same, whilst she also had the assistance of an interpreter at her appeal hearing. As such I do not find any basis or merit in this complaint of the applicant.

15. Regarding her complaint of never had the opportunity of presenting her claim under BOR 2 risk before the Director, as noted from the Director’s Further Decision above that it was on 12 June 2017 when a letter was sent to the applicant at her then known address inviting her to submit additional facts relevant to her claim under BOR 2 risk, and if indeed that letter never reached her at that address, and it was her responsibility to update the authorities on her address and there was no evidence from her that that was the case, and in the absence of any response from her the Director proceeded to assess her claim under BOR 2 risk and found that she has failed to establish any personal or real risk of her absolute and non-derogable rights including right to life under the HKBOR being violated upon her return to Indonesia, and given the nature of the asserted ill-treatments the Director was perfectly entitled to arrive at such a decision based on the evidence and materials available to him.

16. Furthermore, if indeed the applicant had wanted to submit additional facts or make further presentation for her claim under BOR 2 risk, she could have done so in her appeal before the Board which was a rehearing of her claim, or at her oral hearing before the adjudicator, and that in any event the Board did consider and similarly found no suggestion that her right under BOR 2 would be violated either from her or from the materials before it. As such I do not find any merit in this complaint of the applicant either.

17. The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s 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 [2013] 1 HKC 526.

18. In the premises and having proceeded to consider 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.

19. For these reasons 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.”

Appeal to Court of Appeal and grounds of appeal

12.  By a notice of appeal filed on 29 October 2018, the applicant appealed against the refusal of leave for judicial review on these grounds (“Grounds” collectively):

(1)   There was procedural unfairness in the form of differential treatment in the assessment of her “BOR 2” risk claim as she did not have legal representation in presenting such claim to the Director whereas other claimants had the Duty Lawyer Service.  Further, she could not understand the content of, and could not respond to, the 12.6.2017 Letter (“Ground 1”).

(2)   Due to the lack of legal representation, she had not been properly advised, and was not aware, of her “BOR 2” rights and could not raise any issue at the oral hearing before the Board (“Ground 2”).

(3)   The authorities failed to take into account the applicant’s membership of a particular social group namely, women in Indonesia, which amounted to a persecution risk in her personal circumstances (“Ground 3”).

(4)   The applicant requested for an oral hearing with language and legal representation (“Ground 4”).

13.  In her skeleton submission dated 25 February 2019, in addition to repeating the proposed grounds for judicial review canvassed before the Judge, the applicant stressed that she had no legal representation after the 1^st Director’s Decision.  Her “BOR 2” risk claim was determined by the Director without obtaining any additional information which she could not provide due to lack of help from lawyer and interpreter.  She suggested that both Secretary for Security v Sakthevel Prabakar and FB v Director of Immigration, relied on by the Judge, were determined more than 10 years ago prior to the implementation of the unified screening mechanism (“USM”).  There were then no separate stages for determining non-refoulement claims.  The system has since evolved.

14.  The applicant also complained about the Board determining her claim in respect of “BOR 2” risk when she did not lodge any appeal after the 2^nd Director’s Decision.

15.  The applicant appeared in person at the hearing of the appeal on 25 March 2019.  She had nothing to add to her grounds of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

16.  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)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

17.  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.  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)].

Discussion

18.  As summarised in paragraphs 5,6 and 9 above, the Director and the Board dismissed the NRF Claim essentially on the facts based on the account given by the applicant herself. None of the Grounds addresses any of the adverse factual findings. 

19.  Grounds 1, 2 and 4 focus upon the lack of legal representation and language assistance after the 1^st Director’s Decision.  In our view, the applicant cannot credibly make any such complaint, not even in relation to the rejection of the claim in respect of “BOR 2” risk, without actually identifying what (if any) relevant additional information she could have provided to the Director and the Board had she been assisted by a lawyer and an interpreter.

20.  While on the matters of legal representation and language assistance, we are puzzled by the attempts to cast doubt on the continuing validity of Secretary for Security v Sakthevel Prabakar and FB v Director of Immigration in paragraph 6 of the applicant’s skeleton submissions.  These cases did not themselves decide that the high standard of fairness does not require non-refoulement claimants to be provided with free legal representation at all stages of the proceedings.  Rather, such principle was adopted and applied by the Court of Appeal in 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, all decisions after the implementation of the USM on 3 March 2014.

21.  As for Ground 3, the applicant did not lead any evidence or even suggest before the Director or the Board that women in Indonesia are persecuted or that she had been or would be persecuted in Indonesia because she is a woman.

22.  In conclusion, the applicant did not in the notice of appeal or her skeleton submissions identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave for judicial review was plainly wrong.  Nor can we discern any.

Disposition

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