SELAMET HARIYANTI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 469/2018

[2019] HKCA 21

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 469 OF 2018

(ON APPEAL FROM HCAL 1024/2017)

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J U D G M E N T

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

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 7 September 2018, refusing to grant leave to the applicant to apply for judicial review.

2.  The Background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1965.  We shall not repeat the same here.

3.  Briefly stated, the applicant is an Indonesian National.  She came to Hong Kong on 23 December 2012 working as a foreign domestic helper until 16 April 2015.  She did not depart and overstayed since 17 April 2015.  She was arrested by the Immigration Department on 16 October 2016.  On 18, 24 and 27 November 2016, she lodged her non-refoulement claim by way of written representation.  The applicant’s claim was based on her fear that she would be harmed or even killed by her abusive husband and her husband’s creditors if she returned to Indonesia.

4.  By a Notice of Decision dated 22 May 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After the hearing on 20 September 2017, the Board dismissed the appeal on 29 September 2017.  The Board found at [36] to [41] of its decision that the applicant had a genuine and subjective fear that her husband would abuse and harm her if she were refouled to Indonesia and such fear had caused her mental anguish.  However, such mental anguish fell below any risk of proscribed harm for establishing her non-refoulement claim.  The Board did not accept the applicant’s husband had caused any serious bodily harm to her nor caused the creditors to harm or rape her.  Further, as the applicant had separated with her husband for many years, there was only a remote chance that the husband would still be able to locate her and harm her if she were to relocate to other big city like Jakarta or Bandung, as such, the Board did not find that the applicant would face a real risk of harm from her husband or the creditors if refouled. The Board confirmed the Director’s decision and rejected the applicant’s claim under all applicable grounds.

THE JUDGE’S DECISION

6.  On 7 December 2017, the applicant sought leave to apply for judicial review in HCAL 1024/2017.  The intended judicial review was in respect of the Director’s and the Board’s decisions.  In the applicant’s supporting affirmation filed on the same day, she put forward the following grounds for her intended challenge (as summarized by the Judge at [11] of the CALL-1 Form) :

(1)  failing to conduct sufficient independent inquiry and critical analysis of COI in considering the applicant’s claim;

(2)  failing to provide adequate reasons for preferring COI materials that supported the Director’s and the Board’s decisions over those that supported the applicant’s claim;

(3)  cherry-picking COI materials to support the Director’s and the Board’s conclusions;

(4)  error/misdirection in law for failing to apply proper principles in the assessment of effectiveness of state protection for Indonesian citizens;

(5)  error/misdirection in law for failing to consider the psychological impact of the facts raised in the applicant’s claim including the injuries and abuses and other threats inflicted on the applicant by her husband and the creditors;

(6)  taking into account of irrelevant considerations including the fact that the applicant did not seek medical treatments for her injuries without considering her limited financial condition and treating her claim as a private and personal dispute.

7.  On 7 September 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [12] – [16] for his refusal to grant leave :

“ 12. These are however mostly 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 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. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13. A close examination of the relevant COI listed and referred to by the Director in paragraphs 21 – 25 of his decision clearly shows that the Director did carefully balance the information that may corroborate the applicant’s assertions with those which indicate that the Indonesian police could provide protection to the public and the government has taken practical steps to improve their effectiveness in his consideration of the applicant’s claim, and that there is no merit in any of the applicant’s complaints under grounds (1) to (4).

14. The fact that both the Director and the Board did accept the applicant’s case of being abused by her husband and her fear of harm from him as genuine in my judgment renders her complaints under grounds (5) and (6) pointless, and as it has been established by both in their decisions that such risk of harm is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Indonesia, there is simply no justification for affording her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. In the premises and having proceeded to consider 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.

16. 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.  In the Notice of Appeal filed on 21 September 2018, the applicant put forward the following grounds of appeal :

“ (1) The law required the Torture Claims Appeal Board to consider my case entirely afresh including making his own independent assessment of the relevant country conditions and examining how they related to the concept of state acquiescence. This would have required him to obtain all relevant country of origin information and make the assessment himself. Instead, the Appeal Board in his decision merely made reference to all the papers and the evidence given by me ‘in assessing’ my claim.

(2) Failing to enquire into the effectiveness of the steps taken by the country of origin into combating violence and terror inflicted by loan shark against vulnerable persons such as my claim and to consider whether or not there had been a failure of due diligence on the part of the country of origins national and local authorities so as to make the state and its officials responsible under the convention against torture (see paragraph 18 UN General Comment No.2 issued by the United Nations Committee Against Torture).”

9.  Pursuant to the order made by Master Au-Yeung on 16 October 2018, the applicant should lodge with the court 2 sets of skeleton argument not less than 28 days (i.e. on or before 5 December 2018) before the hearing of the appeal which was fixed for 2 January 2019.  The applicant only lodged the same on 7 December 2018.  As the delay is not substantial, we would excuse it.

10.  In the skeleton argument, the applicant repeated the factual background of her non-refoulement claim and the grounds for judicial review as set out in Form 86 which were advanced before the Judge and canvassed at the lower court hearing.

11.  We heard the appeal on 2 January 2019.  The applicant did not make any oral submissions.

DISCUSSION

12.  In the determination of an appeal, we focus on the decision of the Judge and we would only reverse the decision if the applicant can demonstrate that the Judge made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong, see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

13.  With the aforesaid principle in mind, we find that the applicant has failed to put forward any viable ground of appeal.  She has failed to identify any error in the Judge’s decision.  She just repeated the basis of her non-refoulement claim which were duly considered and rejected by the Judge.  In any event, the Judge had rightly found that the Director and the Board had carefully considered the applicant’s case after a rigorous examination and anxious scrutiny.  He was entitled to come to the conclusion that both the Director and the Board had adhered to the high standard of fairness and there was no error of law or procedural unfairness in either of them: see [15] of the CALL-1 Form.  We agree with the Judge that the applicant’s case was not reasonably arguable and leave to apply for judicial review should not be granted.

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.