RE MARIANA

CACV 298/2020

[2021] HKCA 363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 298 OF 2020

(ON APPEAL FROM HCAL NO. 1918 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge K.W. Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 15 July 2020.

2.2  This appeal was scheduled to be heard on 26 January 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 4 November 2020, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of Indonesia.  She entered Hong Kong legally as a visitor and overstayed.  She raised a non-refoulement claim on the basis that if she returned she would be harmed or killed by her stepfather named Budi. 

2.2  The details of the applicant’s claim have been summarized by the Judge at [5] to [7] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 15 June 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 31 July 2018, the Board dismissed the applicant’s appeal against the Director’s Decision on 30 August 2018.

4.2  The Board found that although there was one occasion the stepfather had assaulted the applicant both physically and sexually, the Board does not accept that the stepfather’s behavior either prior to or after the event posed an ongoing risk to the applicant of it being repeated should she return to Indonesia.  There was no evidence of a pattern of gross violation of human rights.  Internal relocation was possible.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with the following grounds relied upon :

(1)   According to country of origin information, corruption within Indonesia police is still extremely serious and women rights are under threat; and

(2)   State protection was not offered to the applicant; the Board erred in finding that there was no real risk of harm.

5.2  The Judge held that it was the applicant who did not seek help from the state authorities.  It cannot then be said that there was inadequate state protection.  The applicant was legally represented before the Board.  High standard of fairness did not mean that the Director or the Board must make sure that state protection was, in fact, provided to the applicant.  As the applicant did not show any prospect of success, the Judge refused to give leave to apply for judicial review.

6)  Grounds of appeal

6.1  The applicant in her notice of appeal stated that the gravity of her circumstances has not been weighed or realized.  She stated that she should have been given the opportunity to plead her case.

6.2  In her supporting affirmation, she made bare allegations that she did not need to provide good grounds of appeal.  She simply stated that the Court should grant her the appeal.

7)  Our view

7.1  We will repeat the approach of this Court in dealing with cases of this nature :

(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 and COI materials and 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 or procedural unfairness or irrationality in their decisions.

(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 and rejected by the Judge.  In the determination for 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 made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2  In our view there is no merit in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

7.3  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.