SUMIYATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 454/2020

[2021] HKCA 308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 454 OF 2020

(ON APPEAL FROM HCAL NO 665 of 2018)

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J U D G M E N T

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Hon S T Poon J (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 31 August 2020[1]dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 28 March 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 28 April 2017 rejecting her non-refoulement claim.

2.  The applicant has consented to her appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of Indonesia.  She has worked as a domestic helper in Hong Kong from about 2001 to about 2015.  When her last employment contract was prematurely terminated on 8 January 2015, the applicant overstayed in Hong Kong because her mother has told her that it was not safe for her to return to Indonesia for loan sharks were looking for her.  She submitted a written representation on 26 January 2015 and then a Non-refoulement Claim Form (“NCF”) on 7 April 2017 to apply for protection in Hong Kong. 

4.  The applicant’s claim is based on her fear of being harmed or killed by loan sharks in Indonesia.  Her case was set out in detail in [7] of the Director’s decision dated 28 April 2017 and summarised by the Judge in [1-5] of the Form CALL-1[2]. 

5.  In brief, the applicant’s claim is based on her fear of the threats and danger from two loan sharks in Indonesia.  The applicant’s case, in brief, is that she was born and raised in the Indramayu Jabar of Indonesia.  The applicant first arrived in Hong Kong to work as a domestic helper in 2001 until the termination of her contract in about 2015.  Previously, she would return to Indonesia for vacations and her last visit was in about 2009.  In about 2011, in order to cover expenses to repair her family home after a heavy flood and medical expenses for her elder brother, her younger brother in Indonesia took out two loans from loan sharks.  The applicant was informed that she was named as guarantor in one of such loans.  Two more loans were borrowed from the applicant’s employer and her paternal uncle to cover medical expenses of her parents, but these two other loans were unrelated to the applicant’s present claim.  As a result, the applicant had to remit most of her income to assist her family in the repayment of those loans. 

6.  In about late 2011, the applicant received phone calls and SMS messages in Hong Kong from the loans sharks, who urged her for repayments of the loans and threatened to harm her family and to confiscate her family home.  In about 2013, the applicant’s mother informed her that the two loan sharks were still looking for her at her family home in Indonesia and it would not be safe for her to return.

7.  By his decision dated 28 April 2017, the Director rejected the applicant’s claim having regard to the torture risk[3], persecution risk[4], BOR 2 risk[5] and BOR 3 risk[6] grounds. 

8.  The applicant appealed against the Director’s decision to the Board on 12 May 2017.  She attended a hearing on 28 February 2018 assisted by an interpreter. 

9.  By its decision dated 28 March 2018, the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found that there were inconsistencies between the versions the applicant gave in the non-refoulement form (“NCF”) and the evidence she gave at the hearing.  In particular, the applicant’s account of the events to the Board in relation to the loans were fundamentally different from those she gave earlier to the Director.  The Board also found further inconsistencies in her evidence given at the hearing regarding the four loans she mentioned in the NCF.  The Board concluded that the applicant failed to make out a case that warranted non-refoulement protection. 

Application for leave to start judicial review

10.  On 18 April 2018, the applicant filed a Form 86 and a supporting affirmation to apply for leave to judicially review the Board’s decision.  She did not set out any ground in support of her application.  She later filed her written submission on 11 May 2020. The Judge summarised the applicant’s intended challenge in [10] of the Form CALL-1 as follows:

“(1)  that the Board is in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing her appeal on the ground that they did not satisfy the requirement;

(2)  that the Board is in breach of procedural fairness in that its decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(3)  that the Board is in breach of procedural fairness in that the majority of the documents in the bundle were in English without translation thereby giving her insufficient time to prepare for her appeal hearing especially due to her limited skills in English and being unpresented and was unstable to find any reasonably cheap interpreter to assist her to prepare for her appeal before the Board;

(4)  that it was unfair for the Board to find her credibility questionable despite the fact that she had answered all the questions honestly in an unfair hearing in respect of the late arrangement for the hearing bundle to be provided to her; and

(5)  that the Board had significantly relied on the source of news not officially recognized or is simply hearsay or outdated resulting in the lack of credible source of information that it would be safe for her return to her country of origin.”

The Judge’s Decision

11.  The applicant did not request an oral hearing for her application for leave to apply for judicial review.  The Judge considered the applicant’s grounds and refused leave for the reasons set out in [11] – [18] of the Form CALL-1:

“11. These are however mostly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board had erred in its decision, or in what way did the Board had unlawfully fettered its discretion or that its decision was unreasonable or irrational in the public law sense, or how it failed to take into account of relevant COI or what information was unofficially recognized or was hearsay or outdated, as none of which was elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for her intended challenge.

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

13. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her late for her appeal hearing before the Board with documents in English without translations thereby given her insufficient time to prepare for her appeal.

14. Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that during her oral hearing when she was assisted by an interpreter, she never raised any issue or requested the Board for further time to enable her to better prepare for her appeal. In the premises I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

15. Essentially the Board rejected the Applicant’s claim on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 33 – 57 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. Furthermore, the fact is that it has been established by the Director in his decision 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 & Anor [2013] 1 HKC 526.

17. 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.

18. 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

12.  By a Notice of Appeal filed on 10 September 2020, the applicant appealed against the refusal of leave for judicial review on the following grounds:

“I am not satisfied with the decision of the authorities and the court so I want to review my case again from to this court because this is toward of my life and dignity. The court and the authorities have been negligent and failed to perform a standard duty of care that is specifically targeted as Non-Refoulement claimant like me.” (sic)

Skeleton Submissions

13.  On 8 February 2021, the applicant lodged a skeleton argument, by which she made further complaints of lack of legal and language assistance with the following grounds:

(1)  Her case was not determined fairly.  Without knowing how the case was determined it is not easy for her to appeal against it.  Non-refoulement claimants like her have limited resources.  There should be a proper and fair mechanism that allows unrepresented litigants to understand more about their case.

(2)  If a litigant has not been informed fully of her right and given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use when it is not even granted in the first place.

(3)  She was never provided with proper legal and language assistance.  She could not get legal representation as she had limited financial resources.  The determination of the Board was not read to her in her language.  All this is procedurally unfair and should be taken into account.

(4)  The discriminatory act of the authorities that aims only at a quick disposal of the non-refoulement claimants’ claims is unacceptable and is detrimental to the spirit of the judicial system.

14.  We heard the appeal on 8 March 2021.  At the hearing, the applicant indicated that she has nothing to add apart from what she has written down on the papers.

Legal Principles

15.  The relevant legal principles as established by a number of cases[7] are as follows.

16.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

17.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision. 

18.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

Discussion

19.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

20.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

21.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed.  There is no basis to disturb the Judge’s decision. 

22.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.