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

CACV 473/2019

[2020] HKCA 336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 473 OF 2019

(ON APPEAL FROM HCAL NO 1000 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 Bruno Chan (“the Deputy Judge”) as set out in the Form CALL‑1 dated 25 September 2019 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 2293.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 7 March 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 16 March 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  By a letter dated 8 October 2019, the applicant gave consent to the appeal being heard by a two-member court. 

A.   Background

3.  The applicant is a national of Indonesia.  She entered Hong Kong on 21 April 2004 as a visitor.  She did not depart when entry permit expired and overstayed for 9 years until 13 May 2013 when she was arrested.  She lodged a non-refoulement claim on 19 March 2014 and 26 March 2014.

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 21-36 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that if she returned to Indonesia, she would be harmed or killed by her abusive husband and/or by the loan shark.  The applicant claimed that her husband was indulged in gambling and drinking.  In 2013, her husband wrote to her while she was in Hong Kong undertaking unauthorized work and demanded money from her to repay the loan he borrowed from the loan shark in the applicant’s name.  Her husband also threatened to kill her if she did not repay the loan.  In around 2015, her sister told the applicant that she saw the loan shark went to the applicant’s house and threatened to kill the applicant if she did not repay the loan.  As a result, the applicant felt fearful for her life.

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

6.  The Director assessed the BOR3 risk^[1], the persecution risk^[2], the torture risk^[3] and the BOR2 risk^[4] in the Director’s Decision.  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 2 January 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 his appeal.

8.  The Board found that the applicant was evasive in giving her evidence in the hearing.  Several answers given by her to the Board’s questions were vague and without clarity:  such as the ownership of the house that she claimed the loan shark would confiscate if she did not repay the debt and the fact that the applicant had lost the important letters wrote by her husband demanding the repayment of the loan (paragraphs 37-59 of the Board’s Decision).  Further, the Board found that state protection and internal relocation were available to the applicant (paragraphs 60-74 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.  

C.   The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 4 June 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. On 4 June 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) error/misdirection in law in their failure to take into account the consideration of psychological strain and threats to the applicant that she suffered mental distress caused by her enemy with great fear for her life;

(2) error/misdirection in law in their taking into account irrelevant considerations including the manner of her departure from Indonesia;

(3) procedural impropriety/irrationality in their failure to give reasons for assessment of lack of BOR 3 risk and/or insufficient basis to support the conclusion of lack of BOR 3 risk; and

(4) procedural impropriety in their failure to consider her claim under BOR 2 risk properly or at all.”

10.  The Deputy Judge heard the applicant’s leave application on 16 July 2019.  During the hearing, an interpreter was arranged for the applicant.  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 11-16 of the Deputy Judge’s Decision:

“11. These are however 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 Board erred in their decisions, while the complaints that they failed to assess her BOR 2 or BOR 3 risks or to give their reasons are simply factually incorrect, as both clearly did so (paragraphs 19 – 24 of the Director’s decision and paragraphs 87 – 92 of the Board’s decision) that there is simply no basis or merits in any of these complaints of the applicant.

12. 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility as to her claimed fear of harm for the thorough and detailed analysis and reasoning set out in paragraphs 37 – 59 of its decision and with the benefit of hearing her in evidence and in her answers to questions raised of her claim during the oral hearing of her appeal, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision 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.

15. 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.

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.”

D.   Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 8 October 2019 to appeal the Deputy Judge’s Decision.  She listed three grounds of appeal: the Deputy Judge (1) failed to consider her fear; (2) failed to consider her claim under BOR3 risk; (3) failed to consider and/or conduct sufficient inquiry into the country of origin information.

12.  Pursuant to Master Au-Yeung’s directions dated 8 October 2019, the applicant filed her skeleton submissions on 5 November 2019.  In that, she cited some authorities on high standard of fairness and claimed that the Board and the Director failed to make sufficient inquiries into the country of origin information.  She also argued that the Board and the Director failed to take into account the real danger she faced and the mental distress she would be in if she returned to her home country.  Further, she stated that her claim is not personal or private in nature and a group of murderers were hunting her down.

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, an 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.  In the Notice of Appeal, the applicant listed the above three grounds of appeal against the Deputy Judge’s Decision without identifying any particulars.  In her skeleton submissions, although she purported to provide elaborations on these grounds, those are directed against the decisions of the Board and the Director. 

21.  Given the well-established principle that the Deputy Judge was not tasked to act as primary decision makers, the grounds in the Notice of Appeal, which only targeted at the primary decision maker, i.e., the Board and the Director, do not amount to proper basis to challenge the Deputy Judge’s Decision.  In other words, the applicant failed to identify any errors with sufficient particularities in the Deputy Judge’s Decision.  These are not viable grounds of appeal.  On this basis alone, we dismiss this appeal.

22.  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

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