RE CASWATI

CACV 415/2018

[2018] HKCA 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 415 OF 2018

(ON APPEAL FROM HCAL 1/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 14 August 2018 refusing leave to the applicant to apply for judicial review. 

2.  Due to the non-compliance with an unless order made by Lam VP on 11 October 2018, the hearing for this appeal (originally fixed for 6 December 2018) was vacated and this appeal is processed on paper based on the materials already lodged according to the practice adopted by this Court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307. 

3.  This is our judgment.

Background

4.  The applicant is a national of Indonesia.  She had been working in Hong Kong as a domestic helper since 2008.  Her employment contract was terminated on 12 June 2014, and she was permitted to stay in Hong Kong until 28 June 2014.  She did not depart upon the expiry of her permission to remain, but overstayed illegally.  She surrendered to the Department of Immigration on 16 February 2016 and lodged her non-refoulement claim on 3 August 2016.

5.  The applicant’s claim was based on the fear that, if refouled, she would be harmed or even killed by a creditor of her deceased husband or his subordinates because of his inability to repay his loan. She had acted as a guarantor for such loan. The background of this case was summarized by the judge in [2] – [4] of the CALL-1 Form (published as [2018] HKCFI 1882).

6.  The Director assessed the applicant’s claim on all applicable grounds, namely, the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3] and the torture risk[4], and determined the risks against the applicant.

7.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  Having considered the papers before it, the Board did not find it necessary to hold an oral hearing.  The Board took account that the applicant was able to work in her friend’s farmland from 2003 to 2008 in Indonesia without being located by her creditor, after working in Hong Kong the applicant had nonetheless returned to Indonesia for a 3-week vacation in 2012 without encountering any problems. Without any documentary evidence in support, the Board did not accept the contention that the Indonesian police failed to discharge their duty to investigate.  The Board also considered that the dispute was of purely private nature and internal relocation was a viable option for the applicant.  The Board was not satisfied that she would suffer the minimum level of harm or threat upon return. The Board also held that internal relocation is viable. The Board dismissed the applicant's appeal accordingly.

The judge’s decision

8.  On 2 January 2018, the applicant applied to the court for leave to apply for judicial review.  In her affirmation dated the same date, the applicant put forth the following grounds for seeking reliefs:

(a)   Against the Board for its failure (i) to hold an oral hearing in contravention of the principles laid down by this Court in ST v Betty Kwan & anor [2014] 4 HKLRD 277 and (ii) to meet the high standards of fairness; and

(b)   Against the Board and the Director for their failure (i) to conduct sufficient and independent inquiry into the relevant country of origin information (“COI”) and (ii) to consider the psychological impact of the facts raised in her claim.

9.  The judge heard the application on 16 May 2018.  Having heard the applicant and after giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at [10] to [17] of the CALL-1 Form:

“ 10. Of the applicant’s complaint of procedural unfairness in ground (1) for not being given any oral hearing by the Board, the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 held that there is no absolute entitlement to oral hearing which is a matter of discretion and ultimately a question of fairness looking at the overall circumstances. Here in deciding whether to call for an oral hearing or a paper review, the adjudicator did remind himself of the principle set out in that Court of Appeal’s decision, and then proceeded to ask himself the following questions:

(a) whether there was anything missing from the applicant’s case which might be brought out in an oral hearing;

(b) whether there was any point of fact or law which might be better brought out;

(c) whether there was any authority, for or against the applicant that should be addressed;

(d) whether there was any need for further questions, especially where an adverse inference may be drawn from the facts, in which case the applicant should have the chance to address the point;

(e) whether there was any general advantage in holding an oral hearing, even though it might occasion extra trouble and expense; and

(f) whether in the name of overall fairness that the applicant might have anything useful to contribute by way of being heard.

12. The adjudicator found that in each case his answer was in the negative, and also noted that the applicant’s claim was dealt with by the Director on the same facts when she was legally represented before arriving at his decision to deal with her appeal without any oral hearing.

13. As for the applicant complaint that she was deprived of the opportunity to provide new facts or information of the danger she would face in Indonesia, as noted by both the Director and the Board, she had had no further contact with her mother since 2013, nor had she any updates regarding the situation in her home country other than her asserted fear that the creditor would harm her upon her return to Indonesia. If indeed she did have any new facts or information which might support her claim, she could have submitted them to the Board prior to its decision in December 2017 but she did not, nor did she at the oral hearing of her leave application now before me.

14. The facts of the applicant’s claim were clear and straightforward before the Board, as were before the Director, and in the light that they were accepted by the Board as put before it before proceeding to find that the applicant had failed to prove that she was ever personally at risk, and with state protection and internal relocation alternatives available to her upon her return to Indonesia, of which the adjudicator was entitled to do on the facts and COI presented before the Board. It was a proper exercise of discretion and I cannot find any procedural unfairness or any reasonable basis to criticize the adjudicator for determining the applicant’s appeal without a hearing.

15. The remaining grounds are all just broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Board had erred in their decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, while her complaint of failure of the Director and the Board to take into account of the psychological impact of the injuries and abusive language which she had been subjected to is clearly factually wrong as any threats from her husband’s creditor to her were based on hearsay only while she was in Hong Kong and that she was never directly threatened let alone being injured or abused by the creditor.

16. The fact is that once it has been established by both the Director and the adjudicator 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 parts of Indonesia, they were entitled to come to their conclusion that there is no justification to afford the applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. 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.

18. 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.”

The appeal

10.  The applicant filed a notice of appeal on 24 August 2018.  In it, apart from setting out some general points without any particular reference to her own case, the applicant advanced only one ground of appeal of substance: viz she was not given any legal representation throughout my appeal/petition with the Torture Claim[s] Appeal Board (“TCAB”), as well as determination of my claim under BOR 2, BOR 3, by the Director of Immigration.

11.  It is factually wrong for the applicant to say that she was not legally represented in the Director’s determination of her BOR 2 risk and BOR 3 risk. She had the benefit of legal representation in presenting her case to the Director[5], who assessed her case on all applicable grounds. 

12.  The high standards of fairness do not prescribe that a non-refoulement claimant has absolute right to legal representation at all stages of the process: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.

13.  In this appeal, the applicant did not put forth any effective argument that warrants this Court reversing the judge’s decision.

14.  We have also considered if the process before the Board was fair in the absence of oral hearing. The Board did not make any adverse finding against the applicant on her credibility.  The facts of the case as presented by the applicant were clearly set out on papers and straightforward.  The Board had also assessed the potential benefit of an oral hearing before deciding not to have one. Having studied the materials, we cannot discern any error in the approach of the Board. On the facts of this case, we agree with the judge that the absence of oral hearing before the Board did not render the process unfair.

15.  We agree with the judge that leave to apply for judicial review should not be granted.

16.  For these reasons, we dismiss the appeal.