YENI SETYAWATI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 360/2019

[2019] HKCA 1310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 360 OF 2019

(ON APPEAL FROM HCAL 1687 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 appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung (“the Deputy Judge”) as set out in the Form CALL‑1 dated 29 July 2019 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 1912.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 9 August 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 25 October 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  By a letter dated 6 August 2019, the applicant gave consent to the appeal being heard by a two-members court. 

A.  Background

3.  The applicant is a national of Indonesia.  She entered Hong Kong on a two-year employment visa as a domestic helper on 31 October 2010.  Her employment was terminated prematurely on 7 November 2010 and she should leave Hong Kong within 2 weeks.  However, she overstayed since 22 November 2010 and was arrested by the police on 13 February 2011.  Initially, she lodged a written claim under Article 3 of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) which was later withdrawn due to her failure to submit the torture claim form.  On 14 September 2017, she confirmed that she would not re-open her torture claim.  On 7 September 2017, She lodged a non-refoulement claim on applicable grounds other than torture claim.

4.  The details of the applicant’s claim and her personal background were set out in paragraph 6 of the Director’s Decision, and paragraphs 9-21 of the Board’s Decision.

5.  Briefly stated, the applicant said she would be killed by her brother Supardi and a loan shark if she returned to Indonesia, as she was unable to repay the money lent to her brother.  The applicant claimed that her brother was addicted to gambling and borrowed a lot of money under the name of her father who had passed away.  Her brother was unable to repay the loan and thus forced her to pay the debts.  He often kicked and punched her to release his anger and attempted to force her to become a sex worker.  After she came to Hong Kong, she remitted most of the money to her brother but it was far from sufficient.  The reason that she overstayed in Hong Kong was that her brother and the money lender would pressurize her to become a prostitute or harm her if she returned home.

B.  The Director’s Decision and the Board’s Decision

6.  The Director assessed the BOR3 risk^[1], the persecution risk^[2] and the BOR2 risk^[3].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

7.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 30 May 2018, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed her appeal.

8.  The Board found that the applicant’s claim of fear was consistent but there were inconsistencies in certain aspects of the applicant’s evidence that shed doubts on her credibility.  It found inconsistencies in the applicant’s version as to, for example, when the money was borrowed and for what purpose did her brother borrow the sum.  Further, there was no documentary evidence of the loan.  As a result, the Board held that the applicant fabricated the story to strengthen her non-refoulement claim (paragraphs 43-60 of the Board’s Decision) and dismissed her appeal.   

C.  The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 21 August 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review stated in her supporting affirmation filed on the same date were summarized by the Deputy Judge at paragraph 10 of the Deputy Judge’s Decision as follows:

“10. In her affirmation in support of her application dated 21 August 2018, the applicant relied upon the grounds below:

(1) they failed to conduct sufficient enquiry into the Country of Origin Information (“COI”);

(2) they failed to give reasons for BOR 3 risk;

(3) they took into account irrelevant considerations including the manner of her latest departure from Indonesia;

(4) they failed to consider the psychological impact on her because of BOR 3 risk, or the Persecution risk and the death threats; and

(5) the Board failed to give sufficient reasons to say that she was not subjected to BOR 3 risks and persecution risks if she was to return to Indonesia.”

10.  The Deputy Judge heard the applicant’s leave application on 17 January 2019.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 11-20 of the Deputy Judge’s Decision:

“The Director’s Decision

11. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigation in the matter. The Board had considered her appeal and made its Decision.

12. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

13. Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

14. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15. The applicant appeared before me. She confirmed that she considered that she had had a fair interview before the Immigration officer and a fair hearing before the Adjudicator. She understood the Board’s Decision herself.

16. I explained the Board’s comments above and asked her if she had any comments. She said that she had no comments on them.

17. It is obvious that the Board had found that her evidence on the facts of her claim were not credible. In the circumstances, the applicant had no factual basis in support of her claim.

18. Grounds (1), (2), (3) and (5) are her opinions, unsupported by any evidence. They have no relevance to the main reasons of the Board which rejected her appeal. They fail.

19. As to ground (4), the applicant had raised no issue of her psychological problem before the Adjudicator. She cannot raise this issue before this Court. This ground fails too.

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

D. Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 6 August 2019 to appeal the Deputy Judge’s Decision. She set down the following grounds:

“1. Failure to consider my fear, from my brother in my country of origin, which is not proper assessed my fear, I will be killed or face serious harm upon refoulement.

2. Failure to conduct sufficient inquiry into the relevant country of origin conditions.

3. Failure to consider my claim on BOR 3 risk.” [sic]

12.  Pursuant to Master Au-Yeung’s directions dated 29 August 2019, the applicant submitted her skeleton submissions on 18 September 2019 and argued that (1) the Board and the Director failed to comply with their duties to make sufficient enquires into the country of origin conditions as required by the principle of high standards of fairness laid down in Prabakar and (2) the decision makers failed to take into account relevant considerations and took into account irrelevant considerations.  To elaborate, she argued that the Board and the Director failed to give due regards to the fact that she would face real risk upon return, failed to consider her fear under BOR3 risk and failed to consider the fact that she was under mental distress.  She also submitted that her enemies were still looking for her.  Apart from these, she did not identify any errors in the Deputy Judge’s Decision.

13.  At this hearing, the applicant confirmed that she had nothing further to add to what had already been set out in the Notice of Appeal and the written submission in support of this appeal.

E.  Discussion

14.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

15.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and 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.  Second, in appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced 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.

17.  Third, 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 Board 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).

18.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

19.  Bearing these principles in mind, we now turn to consider the grounds of appeal.

20.  As rightly pointed out by the Deputy Judge, the Court of Appeal have explained in Re Moshsin Ali at [31] – [45], the Director’s decision is not susceptible to judicial review once an appeal to the Board is pursued by a claimant.  Accordingly, the applicant’s grounds of appeal relating to the Director’s Decision are rejected.  In this respect, we agree with the Deputy Judge’s approach at [11] to [14] of the Deputy Judge’s Decision.

21.  Further, the applicant did not identify any errors in the Deputy Judge’s Decision.  There are no viable grounds.  Insofar as the grounds in her Notice of Appeal that alleged the Deputy Judge’s failure to consider her fear, conduct sufficient inquiry and consider her claim on BOR3 risk, as mentioned, the Deputy Judge was not tasked to assess these factual findings which are within the parameters of the decision makers’ responsibilities.  Thus, these grounds are therefore wholly misconceived.

22.  In our view, the Deputy Judge in his decision had carefully examined the Board’s Decision.  The applicant before the Deputy Judge confirmed that she had a fair hearing before the Board.  She was unable to find evidential support to appeal against the Board’s Decision.  Thus, we find the Deputy Judge is right in concluding the applicant had no reasonable chance of success to challenge the Board’s Decision.   

23.  Since the grounds in the applicant’s Notice of Appeal and the skeleton submissions targeted at the decision makers, i.e., the Board and the Director.  There is no valid basis to show that the Deputy Judge was wrong in any respect in his reasons for refusing the applicant’s application for leave to apply for judicial review.

24.  In any event, we have reviewed both the Board’s Decision and the Deputy 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.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

25.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.