INDAH v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 334/2019

[2019] HKCA 1362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 334 OF 2019

(ON APPEAL FROM HCAL NO. 525 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 19 July 2019 refusing to grant her 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 7 February 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 12 October 2017 rejecting her non-refoulement claim. 

2.  The applicant is an Indonesian national.  She entered Hong Kong on 24 April 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 23 April 2015 or within 14 days of its early termination.  On 5 April 2014 her contract was prematurely terminated, but she did not depart and overstayed until 16 February 2015 when she was arrested by the police.  She was then transferred to the Castle Peak Bay Immigration Centre for investigation.  On 26 February 2015, she lodged her non-refoulement claim by way of written representation. 

3.  The applicant’s claim is based on her fear that she would be harmed or killed by her husband’s creditor or debt collectors for failing to repay the loan if she returned to Indonesia.  The applicant’s claim was set out in details in [6] of the decision of the Director, and summarised by the Judge in [2] to [7] of the CALL-l Form dated 19 July 2019, [2019] HKCFI 743.  In gist, the applicant was married with a daughter.  In or about November 2010, the applicant’s husband borrowed 200 million Indonesian Rupiahs from a loan company and asked her to co-sign his loan agreement.  The husband was unable to repay the monthly interest of the loan since August 2011.  Debt collectors came to their home to pursue the debt and threatened to kill the husband if he could not settle the debt.  The applicant left Indonesia in December 2011 to Hong Kong working as a domestic helper in order to repay the debt.  The husband died from a heart attack in or about 2015 and thereafter the applicant believed that she was solely responsible for the debt.  As she did not have money to settle the debt, she was in fear that she would be harmed or killed by the debt collector. 

4.  By the decision dated 12 October 2017, the Director rejected the applicant’s claim having regard to the torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4] grounds.  

5.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 5 January 2018, during which she was assisted by an Indonesian interpreter.  By a decision dated 7 February 2018, the Board dismissed the appeal.  For the reasons set out in [56] to [60] of the decision, the Board found that the applicant’s account to be inconsistent and unreliable and there was no evidence showing the applicant or her family had suffered from any physical violence by the debt collectors. She admitted at the appeal hearing that she neither met nor was threatened by the debt collectors at any time.  Internal relocation was a viable option which could effectively eliminate any undue hardship she might face if refouled.  The Board found that the applicant had failed to establish a case in respect of any of the applicable grounds. 

6.  The applicant filed her Form 86 together with a supporting affirmation on 29 March 2018 seeking leave to apply for judicial review against the decisions of the Director and the Board but neither in it nor in her affirmation contained any grounds for her intended challenge.  Only on 9 January 2019, the applicant submitted a letter advancing the following grounds of relief (as summarized in [12] of the Call-1 Form):

(1)     Procedural impropriety in their failure to make full and proper inquiries into the relevant country of origin information (“COI”) including cherry picking COI to support their decisions, failing to state why they were preferred over other information, and failing to properly assess her case in light of the relevant COI;

(2)     Procedural impropriety in failing to consider her claim in a holistic manner;

(3)     Error/misdirection in law in failing to consider the concept of extended state acquiescence as per paragraph 18 of General Comment No. 2 of the United Nations Committee Against Torture;

(4)     Error/misdirection in law in finding that it was sufficient to combat inter alia police effectiveness and anti-corruption by some reliefs and avenues of reform introduced by the state government;

(5)     Error/misdirection in law in failing to consider the psychological harm suffered by the applicant as a result of the facts stipulated in her non-refoulement claim; and

(6)     Insufficient reason to support the Director’s conclusion that the applicant would not be subjected to harm if refouled to her country of origin. 

7.  The Judge considered the intended judicial review not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review. He gave his reasons at [13] to [17] of the Form CALL-1 as follows:

“13. These are however all 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 Director or the adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way was the concept of extended state acquiescence relevant to her case which was simply a private loan repayment dispute without any official involvement. None of these assertions were elaborated or presented with any particulars or specifics by the applicant. As such I am unable to see any basis or merits in any of these complaints, or that any of them can reasonably be arguable for her intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

15. Furthermore, the fact 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 & anor [2013] 1 HKC 526.

16. 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.

17.  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.”

8.  The applicant filed a notice of appeal on 23 July 2019, which contained the following grounds of appeal:

(1)  The Judge failed to apply the principle of irrationality in considering the decisions of the Director and the Board.

(2)  The Board failed to give sufficient chance for the applicant to arrange relevant evidence for her appeal hearing before the Board.

(3)  The applicant will face hardship upon her return to her home country and the Board has significantly relied on the source of news which is not officially recognised, or is simply hearsay.

(4)  The Judge and Board relied on some cases which were outdated considering the dramatic changes in the situation of her home country.  The lack of credible source of information has resulted in groundless speculations being made.

(5)  The Judge failed to apply the principle of procedural unfairness in considering the decision of the Director whereby the Director and the adjudicator were required to give reasons justifying their decisions.

9.  In her written submissions, she referred to ST v Director of Immigration [sic]^[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and the high standards of fairness are engaged because the applicant’s life and limb and her fundamental human rights not to be subjected to torture were involved, and the decision has the effect of finally disposing of the applicant’s claim.   

10.  We heard the appeal on 3 December 2019.  At the hearing, the applicant confirmed that everything she wished to present to us has been included in the papers and she has nothing to add.

Discussion

11.  The grounds of appeal set out in the notice of appeal are general complaints without particulars and elaborations.  Here, the Board rejected the applicant’s case for the reason that there was no evidence that she had been subject to any past ill-treatment at the hands of the creditors that had attained the minimum level of severity and in any event internal relocation would be a viable option for her to avoid risk of harm, if any.  It was perfectly open for the Board to reach its conclusion and unless there are public law grounds, this Court would not intervene with the Board’s decision.

12.  Further, we note that the applicant had adopted all the materials and information she had provided to the Director and she had nothing to add for her appeal before the Board.  As shown from the Board’s decision, the adjudicator had provided reasonable opportunity to the applicant to establish her case and detailed reasons were given for its dismissal of the case.  As such, her complaint for lack of chance to prepare for evidence for her appeal simply cannot stand.

13.  We are satisfied the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and share the same view that there was no errors of law or procedural impropriety nor any failure on its part to apply the high standard of fairness in its consideration and assessment of the applicant’s claim.  In our judgment, the complaints against the Judge and the Board are unmeritorious and must fail.

14.  The written submissions merely provided some general references to the legal principles and case authorities in relation to non-refoulement claim and the applicant gave no explanation or elaboration how they would assist or advance her own case.  In our judgement, nothing mentioned in it can be constituted as valid argument for the applicant’s appeal. 

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

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[5] The correct citation should be ST v Betty Kwan