YULIANA RAKHMAWATI v. TORTURE CLAIMS APPEAL BOARD

CAMP 198/2022

[2022] HKCA 1299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 198 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2202 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 16 June 2022, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 31 May 2022 refusing to grant to the Applicant an extension of time to appeal against an earlier order of the Judge dated 30 July 2021 refusing leave to the Applicant to apply for judicial review (“the Order”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)  dated 20 September 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 1 March 2017.

BACKGROUND

3.  The Applicant is a national of Indonesia.  She last arrived in Hong Kong on 10 March 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 15 February 2014.  In the course of her subsequent application for change of employment for a different employer, the Applicant was found to have made a false representation to the Immigration Department, for which she was subsequently charged and convicted, and was sentenced to prison for 4 months. Upon her discharge from prison, she was referred to the Immigration Department for deportation.  She then raised a non-refoulement claim on the basis that if she returned to Indonesia, she would be harmed or killed by her abusive former husband for divorcing him and for having a boyfriend in Hong Kong.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2021] HKCFI 2227).

4.  By a Notice of Decision dated 1 March 2017, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

5.  The Applicant appealed the Director’s decision to the Board.  On 20 September 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board found the Applicant’s evidence of threats from her former husband vague and inconsistent, that with so many years after their divorce and with no further contact between them since 2001 that it is not accepted that her former husband would still have any adverse interest in her, and that in any event it was a private domestic dispute between them without any official involvement that state/police protection would be available to the Applicant upon her return to Indonesia as well as other organizations to assist her that her claim for non-refoulement protection failed on all applicable grounds.”

JUDGE’S DECISION

6.  On 11 October 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

7.  On 30 July 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[9] On 11 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her written submissions dated 20 May 2021 she put forward the following grounds for her intended challenge:

(1)  that the Board was in breach of procedural fairness in that it had unlawfully fettered its decision by refusing her appeal on the ground that it did not satisfy the requirements;

(2)  that the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3)  that the Board’s decision to refuse her appeal is unreasonable and irrational in the public law sense or is the result of procedural error or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  that the majority documents in the bundle were in English that there was insufficient time for her to prepare for her appeal hearing due to her limited skills in English and being unrepresented that she was unable to find any interpreter to assist her with her appeal and that she was confused and did not know what happened during the hearing before the Board; and

(6)  that she answered all the questions honestly during the hearing that it was unfair that her credibility was found questionable by the Adjudicator due to her problems with the hearing bundle.

[10] These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case, or how did the Board or the Adjudicator err in the decision, or in what way did the Board unlawfully fetter its decision, or how did the Adjudicator act in an unfair manner or fail to meet the greater care towards her as an unrepresented claimant. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

[11] 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.

[12] The only other complaint which the Applicant appeared to have made with any particulars or elaboration was about the hearing bundle being provided to her late for her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents in English and thereby given her insufficient time to prepare for her appeal.

[13] 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 from DLS, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing before the Board and assisted by an interpreter, the Applicant never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

[14] In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 40 – 52 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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.

[15] The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also confirmed by the Board, 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.”

8.  On 31 May 2022, the Judge refused the Applicant’s application by summons dated 17 August 2021 for an extension of time to appeal against the Order (see [2022] HKCFI 1497).

THIS APPLICATION

9.  By a summons taken out on 16 June 2022, the Applicant applied for leave to appeal against the Judge’s order of 31 May 2022.

10.  In her supporting affirmation filed on the same date, the Applicant stated that she disagreed with the Judge’s decision of 31 May 2022, and did not think that her case had been determined fairly.

11.  In her 3-page written submissions dated 30 June 2022, the Applicant complained generally about procedural unfairness.  She stated that she did not agree with the observations made by the Director and the Board, and it was untrue that there was State protection available in Indonesia.  She complained about the lack of legal representation in relation to the assessment of the BOR 2 risk, and alleged that “[t]he further decision was determined by Director of Immigration without ensuring that I am aware of my rights and for the definitions behind BOR 2.  Further, the lack of language assistance and legal representation meant that … I had no understanding of the process or the reason for rejecting my claim”.  She also requested for an oral hearing of the application.

DISCUSSION

12.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

13.  Having regard to the Court’s summer vacation in the month of August, at the time when the Applicant took out the summons below on 17 August 2021, she did not in fact require any extension of time to appeal against the Order.  Technically, she now requires an extension of time to appeal.  We shall focus on the merits of her intended appeal in our consideration of her present summons of 16 June 2022.

14.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

15.  Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

16.  The Applicant’s general complaint of procedural unfairness cannot constitute any viable ground of appeal.

17.  In relation to the Applicant’s complaint about lack of legal and language assistance, it is well-established that (i)  the high standard of fairness required to be observed in the assessment of a non-refoulement claim does not include the provision of language assistance to a non-refoulement claimant at all times that he/she wishes to have such assistance, and (ii)  a non-refoulement claimant is not absolutely entitled to free legal representation at all stages of the proceedings.

18.  Since the Applicant’s non-refoulement claim on all applicable grounds were considered together by the Director and subsequently by the Board, there is no basis for her to single out for complaint the process relating to the assessment of BOR 2 risk.

19.  Overall, the Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 30 July 2021, and has failed to raise any viable ground of appeal against the Order.

20.  There is no prospect of success in the Applicant’s intended appeal.

21.  Lastly, we take note of the Applicant’s request for an oral hearing of the present application.  Since the Applicant’s application plainly has no merits, we consider it appropriate to determine the application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

DISPOSITION

22.  The application for extension of time to appeal is refused, and the Applicant’s summons of 16 June 2022 is dismissed.

23.  If required, the Applicant may make an arrangement with the clerk of this Court for an oral interpretation of this judgment to her at a mutually convenient time.