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

CACV 351/2019

[2019] HKCA 1315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2019

(ON APPEAL FROM HCAL NO 2888 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):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) on 22 July 2019 refusing leave to the applicant to apply for judicial review. 

Background

2.  The applicant is a national of Indonesia.  She last arrived in Hong Kong on 27 February 2007 with a permission to remain as a domestic helper.  Her employment contract was prematurely terminated on 8 November 2007.  She did not depart within 14 days after the date of the termination as required under her permission to remain, but overstayed illegally.  She surrendered to the Immigration Department on 9 July 2010 and lodged a torture claim on 24 August 2010.  Her torture claim was rejected on 16 November 2012.  On 21 December 2016, the applicant was informed that, under the unified screening mechanism, the decision on her torture risk^[1]would not be reviewed.  She lodged a Supplemental Claim Form dated 9 February 2017 applying for non-refoulement protection on all applicable grounds except the torture risk.

3.  The applicant’s claim was based on the fear that, if refouled, she would be harmed or killed by a loan shark because she was not able to repay the loan lent to her husband.  The brief facts of this case were summarized by the Judge in [4] of the Form CALL-1 ([2019] HKCFI 1802).

4.  The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds (except the torture risk), including the risk of violation of the absolute and non-degorable rights guaranteed under the Hong Kong Bill of Rights (particularly the BOR 2 risk^[2]and the BOR 3 risk^[3]), and the persecution risk^[4].  By a notice of decision dated 8 March 2018, the Director determined the claim against the applicant.

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 11 April 2018, where the applicant elected to give evidence.  Having considered the evidence, the Board found that the loan shark did not inflict any physical harm upon the applicant^[5].  Given further the fact that there were only two threats in the period of 11 years, the Board considered the threats could not attain the minimum level of severity^[6].  The Board also took the view that no state agent was involved and state protection was reasonably available^[7].  Internal relocation was also taken to be a viable option for the applicant^[8].  Accordingly, the Board found that the applicant would not face a genuine and substantial risk of being subjected to ill-treatment if refouled^[9].  By a decision dated 5 October 2018, the applicant’s appeal/petition was dismissed.

The Judge’s decision

6.  By a Form 86 filed on 17 December 2018, the applicant sought leave from the court to apply for judicial review against the decision of the Board.  The grounds of review as set out in the Form 86 and the supporting affirmation were summarized by the Judge in [11] of the Form CALL-1.  In grounds 1 and 2, the applicant complained that the Board had unlawfully fettered its discretion and acted unfairly; and grounds 3 and 4 concerned the Board’s handling of the country of origins (COI) materials, and its failure to give greater care to the applicant because she was a self-represented claimant.

7.  Upon the request of the applicant, an oral hearing was held on 22 May 2019.

8.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in the Form CALL-1 as follows:

“1. The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. Her friend had explained to her the hearing bundle and she understood the Board’s Decision herself.

2. I explained the Board’s findings in paragraph 9 to her and asked if she had any comments. She said that she had no comments on them.

3. It is quite obvious that, apart from some fundamental facts such as her nationality, the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

4. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of facts by the Adjudicator was final [42].

5. Grounds (1) and (2) are inconsistent with her evidence before me.

6. Grounds (3) and (4) are her opinions without any evidence in support of them.

7. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

The appeal

9.  On 31 July 2019, the applicant filed a notice of appeal against the Judge’s decision.  She stated in the notice that:

“... [she] will face hardship if [s]he is to return back to h[er] home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

10.  The applicant lodged her skeleton submission on 9 October 2019.  In it, the applicant quoted some passages from ST v Director of Immigration^[10] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.  She further submitted that the Board acted in a procedurally unfair manner and failed to access her credibility properly.  She also complained about the Wednesbury unreasonableness of the decision-makers, citing Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence exp Smith [1996] QB 517 in support.  Finally, the applicant referred to section 37ZT of the Immigration Ordinance (Cap 115).

11.  We heard the appeal on 25 November 2019.

General principles

12.  For the purpose of this appeal, we would highlight the following salient propositions concerning appeals in non-refoulement cases:

(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 (or an adjudicator).  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, COI 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 to 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)   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 Adjudicator 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

13.  We are slightly disturbed by [3] and [4] in the Judge’s reasons for refusing leave.  First, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549 did not hold that the finding of facts by the Board is final. At [42] of that judgment, the Court was describing the statutory scheme with a view to explain how the second-tier decision of a Board would overtake the first-tier decision of the Director.  Thus, judicial review should focus on the decision of the Board and in the absence of exceptional circumstances it would not be appropriate to mount a judicial review against the decision of the Director after a decision of the Board has been given.

14.  Under Section 23(4) of Schedule 1A of the Immigration Ordinance, the decision of the Board is final.  Final means final in terms of administrative process.  However, such statutory provision does not exclude judicial review.  In a judicial review, the court will process the matter by examining if there is public law ground to warrant intervention as discussed in [12(1)] above.

15.  Thus, the correct approach to a finding of fact or assessment of credibility by the Board in a judicial review is set out at [12(1)] above,

“Assessment of evidence, COI 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.”

16.  Re: Moshsin Ali [2018] HKCA 549 is perfectly consistent with this approach.  At [47] to [51] in that judgment, the Court evaluated if there was valid ground for disturbing the Board’s decision.

17.  If the Judge proceeded on the basis that the findings of fact by a Board is not reviewable at all, that would be wrong in law.

18.  However, the Judge had to consider the application by reference to the grounds of challenge set out in the Form 86.  As we have seen, the grounds revolved around the hearing bundles and the hearing process.  The only substantive ground on the assessment by the Board was about COI being outdated.

19.  Having considered the materials available before him, the Judge found that the applicant had failed to substantiate the COI ground with evidence.  We agree with the Judge in that assessment.

20.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection in Hong Kong based on the Board’s assessment of the applicant’s risk of harm if refouled.  It also found that state protection was available and internal relocation a viable option for the applicant.  As we explained above, the assessment of the risk of harm, the availability of state protection and the viability of internal relocation are all within the province of the Board.  The Court will not interfere with these findings unless an applicant can demonstrate that these findings are reversible on public law grounds. 

21.  Having considered the materials available before him, including the acknowledgments of the applicant set out at [1] in the Judge’s discussion, the Judge found that the applicant failed to demonstrate any of such grounds.

22.  We have also considered the applicant’s grounds in light of the Board’s Decision, we do not find any public law basis for challenging the Board’s assessments. 

23.  In this appeal, what was stated in the notice of appeal is essentially an invitation to this Court to revisit afresh the assessment of the applicant’s claim.  As we have explained, this is not a permissible course on appeal.

24.  We cannot discern how the legal authorities cited by the applicant in her skeleton submission can avail her in this appeal.  Nor are we able to see any relevancy regarding section 37ZT, which relates to the late filing of notice of appeal to the Board.

25.  Plainly, the applicant failed to pinpoint any viable arguments to reverse the Judge’s decision.

26.  For these reasons, we dismiss the appeal.