RE WAHYUNI

CACV 517/2018

[2019] HKCA 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 517 OF 2018

(ON APPEAL FROM HCAL 194 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant Madam Wahyuni against the order made by Deputy High Court Judge Josiah Lam (“Judge”) on 5 October 2018 refusing her leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“Board”) given on 8 December 2017 (“Board’s Decision”), which dismissed the applicant’s appeal against the decision dated 19 December 2016 by the Director of Immigration (“Director”) rejecting her non-refoulement claim (“NRF Claim”).

The NRF Claim and allegations in support thereof

2.  The applicant is an Indonesian national.  She was raised as a Christian.

3.  In support of the NRF Claim, the applicant alleged that she worked as a domestic helper in Singapore from 2007 to 2010.  While working in Singapore, she met a woman called Sri who was experienced in running small businesses of selling clothing and handbags.  In 2010, the applicant left Singapore upon the expiry of her contract there.  She came to Hong Kong on 25 November 2010 to work as a domestic helper.  She remained in touch with Sri.  In 2012, Sri proposed and the applicant agreed that they should set up a business in Indonesia to import and sell handbags.  The applicant’s contract of employment in Hong Kong ended on 19 March 2013 whereupon she returned to Indonesia to open shop with Sri.  It was agreed that the applicant should raise money to start up business.  However, she did not have sufficient capital.  Sri introduced her to a money-lender called Sunyoto from whom the applicant borrowed a loan.  Although the loan was borrowed in the applicant’s name, at Sri’s request, the money was paid directly into the account of Sri who then vanished without a trace, leaving the applicant to face Sunyoto who demanded immediate repayment.  As the applicant could not repay the loan, Sunyoto and his bodyguards beat her up and threatened to kill her.  Fearing for her safety, the applicant re-entered Hong Kong on 30 April 2013 with a visitor’s visa.  The applicant did not leave Hong Kong before her visa expired on 7 May 2013 and overstayed as from 8 May 2013.  She remained undetected for some 3 years until she was arrested by police on 6 July 2016.   

4.  The applicant raised the NRF Claim by written representations in August 2016 and lodged her non-refoulement claim form on 16 November 2016.  Such claim was made on the basis that, if the applicant were to return to Indonesia, she would be harmed or even killed by Sunyoto because of her default in repaying the loan borrowed from him.  

5.  Further, at the hearing before the Board, the applicant also expressed concern (apparently for the first time) that if she were to return to Indonesia, her mother (who married a Christian and allowed the applicant to be raised as a Christian) might force her to convert to Islam.

The decisions of the Director / the Board

6.  By a Notice of Decision dated 19 December 2016, the Director rejected the NRF Claim on all applicable grounds namely, torture risk[1], persecution risk[2], “BOR 3” risk[3] and “BOR 2” risk[4].

7.  The applicant appealed to the Board.  A hearing was held on 31 October 2017, at which the applicant testified and answered questions by the Board with the assistance of an Indonesian/English interpreter. 

8.  The Board’s Decision likewise covered all the said applicable grounds.  The Board dismissed the appeal and affirmed the Director’s decision.  More particularly, for the detailed reasons explained at [86] to [106] of the Board’s Decision, the Board found at [85], [107] to [115] that the applicant was not a witness of truth; that she did not have a plan to open a business with a friend called Sri, nor with anyone else, nor by herself; that she has never met and does not know a man called Sunyoto; that she did not borrow money from Sunyoto or anyone else; consequently that she has never been threatened or harmed by Sunyoto or people associated with him; that the applicant does not owe money to any person in Indonesia; that applicant’s mother has no intention to try to force the applicant to convert to Islam; that the applicant can safely return to Indonesia; and that she will not be at risk of any type of harm at the hands of anybody should she return to Indonesia.

Application for leave for judicial review and grounds for judicial review

9.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 194/2018 on 8 February 2018 (Form 86), the applicant sought leave to apply for judicial review of the Board’s Decision.  As summarised by the Judge at [28] to [31] of the CALL-1 Form dated 5 October 2018, [2018] HKCFI 2135, by her supporting affirmation filed on the same date as the Form 86, the applicant advanced the following grounds for review:

28.  In her affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

29.  The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases/irrelevant information; relied on information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; misdirected in law; applied the wrong standard of proof; rendered unreasonable decisions.

30.  The Applicant mentioned she was not given sufficient legal representation. She also complained she was given the appeal bundle only a few days before the appeal hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused then. She complained the Adjudicator failed to make appropriate arrangement.

31.  Although the Applicant did not name the Director as respondent but only as interested party, she accused the Director decided on the BOR2 risk issue without screening.”

The Judge’s decision

10.  At the applicant’s request, her leave application was heard at an oral hearing on 27 June 2018 at which an Indonesian interpreter provided assistance.  The applicant appeared in person following a failed application for legal aid.  Her application for an adjournment pending the hearing of her appeal against the refusal of legal aid was declined given the applicant’s failure to explain why she could not have applied for legal aid earlier than she did and to show she had a good chance of obtaining legal aid.

11.  For the reasons set out at [38] to [53] of the Call-1 Form, The Judge concluded that the applicant’s proposed application for judicial review of the Board’s Decision had no prospect of success and refused leave:

“38. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

39. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“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. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

40. The Applicant complained the Director had not screened her claim on BOR2 risk. That was not true. The Director had carefully and fully considered the Applicant’s claim in his single decision dated 19 December 2016 with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.

41. The Applicant complained she had not been given sufficient legal assistance. She had been represented by the Duty Lawyer Service up to the Director's decision. There was no evidence that she had re-applied for legal assistance from the Duty Lawyer Service afterwards. The Applicant also failed to show this court how her claim would be prejudiced or undermined by the lack of legal representation only in the later stages of the screening process. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.

42. The Applicant accused the Adjudicator of failing to evaluate and make a finding as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights.

43. The Adjudicator found the Applicant's claim incredible. In light of such finding, it was not necessary for the Adjudicator to discuss such issues as human rights violation, state acquiescence, state protection, internal relocation and so on.

44. The Applicant also complained the Adjudicator did not call for psychological and psychiatric reports. However, the Applicant failed to justify there was such a need. In fact, the Adjudicator disbelieved her claim.

45. The Applicant raised her language problem. In the current application, a friend helped her to prepare Form 86 and the affirmation in English. That showed the Applicant could find someone to assist her with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated her problem of getting interpretation/translation assistance and handling English documents.

46. The Applicant complained she received the appeal bundle only a few days before the appeal hearing.

47. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

48. The Director in his letter dated 27 June 2018 confirmed that the Applicant received the appeal bundle on 23 October 2017. That was 8 calendar days (or 6 working days excluding a public holiday and a Sunday) prior to the hearing scheduled for 31 October 2017. Thus, the bundle was served on the Applicant in time.

49. The bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

50. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. There was no evidence that she had so complained to the Adjudicator or asked for adjournment then.

51. The Applicant said she answered all the questions honestly in the Board hearing. That would mean she knew well what was asked and how to answer. She was not confused.

52. The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases/irrelevant information; relied on information not officially recognised or simply hearsay; cherry-picked information. The Applicant failed to be specific and there was no evidence to support such complaints.

53. There are other vague complaints by the Applicant.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.  I find the Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable.  He made no errors of law and there was no procedural unfairness.  The Adjudicator had engaged in joint endeavour with the Applicant in the screening process.  The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case.  The Adjudicator was acquainted with the facts of the Applicant's case.  He considered the Applicant’s claim carefully and applied the law correctly.  The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints can stand.”

Grounds of appeal

12.  By her affirmation filed herein on the same date as her notice of appeal, the applicant put forward 2 grounds of appeal:

(1)  that the Judge was wrong in law in holding that there was no state acquiescence or involvement; and

(2)  that the Judge failed to provide detailed reason in support of his decision.

13.  In her skeleton submission dated 31 January 2019, the applicant cited certain case law and legal principles, but without explaining how they are relevant to this appeal.

14.  The applicant appeared in person at the hearing of the appeal on 25 February 2019.  She had nothing to add to her grounds of appeal or skeleton submission.

Discussion

15.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is to scrutinise the Board’s decision only for errors of law, procedural unfairness or irrationality.  See, for instance, Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

16.  The first ground of appeal is therefore entirely misconceived.   We have set out in paragraph 11 above [38] to [53] of the Call-1 Form which contains the Judge’s analysis of the applicant’s application for leave for judicial review of the Board’s Decision.  It can be seen that the Judge did not make any finding as to the presence or otherwise of state acquiescence or involvement.  He could not have done so.  It was not within his province to do so.  Indeed, the Judge pointed out at [43] that, having disbelieved the applicant on her claim, it was unnecessary for the Board to consider state acquiescence.

17.  The second ground of appeal is likewise devoid of merits.  The Judge did provide reasons for refusing leave.  See again [38] to [53] of the Call-1 Form quoted in paragraph 11 above.

Disposition

18.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.