RE DEWI ANGGRAENI AND ANOTHER

CACV 213/2019

[2019] HKCA 1021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 213 OF 2019

(ON APPEAL FROM HCAL 752/2018)

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JUDGMENT

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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 Josiah Lam (“the Judge”) given on 30 April 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 28 August 2017 and the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 23 April 2018.  In the former decision, the Director rejected the applicants’ claim for non-refoulement protection in Hong Kong; and in the latter decision, the Board upheld the said decision of the Director.

Background

2.  The 1^st applicant is a national of Indonesia.  She had been working as a domestic helper in Hong Kong since 2002.  She last arrived in Hong Kong on 19 March 2012 with a permission to work as a domestic helper.  Her employment contract was prematurely terminated and, according to her permission to remain, she was required to leave Hong Kong by 21 October 2012.  She did not do so, and overstayed illegally.  She was arrested by the police on 8 March 2014.

3.  The 2^nd applicant is the daughter of the 1^st applicant, and was born in Hong Kong in July 2015.  The 1^st and the 2^nd applicants lodged their non-refoulement claim by way of written significations dated 11 March 2014 and 31 August 2015.  

4.  The 1^st applicant claim was based on the fear that, if refouled, she would be harmed by her step mother and money lenders (who lent money to her step mother) because she refused her step mother’s demand for money.  As the 2^nd applicant’s father is an Indian national, it was also feared that, if refouled, the 2^nd applicant would be discriminated because of her mixed ethnicity. The brief facts of this case were set out by the Judge in [1] – [14] of the Form CALL-1 ([2019] HKCFI 980).

5.  By a notice of decision dated 28 August 2017[1], the Director assessed the applicants’ claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[2] and the BOR 3 risk[3]), the persecution risk[4], and the torture risk[5].

6.  The applicants lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 26 January 2018, and the 1^st applicant gave evidence thereat.  Having considered the evidence, the Board noted a number of discrepancies between the information provided by the 1^st applicant to the Director and the oral evidence given by her at the hearing. Notwithstanding those discrepancies, the Board was prepared to accept that the 1^st applicant’s step mother was unkind and cruel to her when she was a child, and hit her by a bamboo stick once.  That being said, the Board found that the 1^st applicant’s account was embellished and exaggerated so as to create a claim for non-refoulement protection.  The Board did not find her to be a reliable witness.  The Board found that she had no contact with her family in Indonesia since late 2010.  The Board did not accept that the applicants would face a substantial risk of being subjected to harm, from the 1^st applicant’s step mother, or her family members, or her step mother’s creditors, which constituted or amounted to torture or other ill-treatments.  The Board also considered that state protection was available to the applicants.  The Board dismissed the appeal/petition on 23 April 2018¹. 

The judge’s decision

7.  The applicants filed a Form 86 on 2 May 2018, seeking leave to apply for judicial review against the Director’s and the Board’s decisions.  The grounds for seeking relief as set out in the 1^st applicant’s affirmation in support filed on the same day were summarized by the Judge in [25] – [26] of the Form CALL-1.  Briefly stated, the applicants complained about the lack of legal and language assistance, and the Director’s handling of the country of origin materials.

8.  Upon the request of the applicant, an oral hearing was held on 12 September 2018. 

9.  The Judge held in [20] of the Form CALL-1 that, in reliance on the case Re Moshsin Ali [2018] HKCA 549, the applicants could no longer seek judicial review against the decision of the Director once the appeal to that decision had been pursued.  

10.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [31] – [42] of the Form CALL-1 as follows (footnotes omitted):

“ Discussion

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

32. 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.’

33. A1 raised a number of complaints in her affirmation. As said in para 20 above, I shall deal with the current application in relation to the Board's decision only.

34. A1 complained there was insufficient legal assistance. She and A2 had been represented by the Duty Lawyer Service up to the Director's decision dated 28 August 2017.

35. 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. A1 failed to show how her case and A2’s case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

36. A1 raised her language problem.

37. In the current application, A1 had a lawyer to prepare Form 86 and the affirmation for her and A2. Apparently, A1 could find someone, even a lawyer, to assist her with interpretation/translation and dealing with English documents at all material times.

38. A1 complained the Adjudicator did not read the appeal bundle to her and the interpreter in the appeal hearing was there ‘only for the duration of the oral hearing and not for the process’.

39. I see no reason why the qualified interpreter in the Board hearing would not provide A1 with sufficient interpretation/ translation assistance. A1’s complaint had no proof.

40. A1 complained the Director did not explain well how he balanced country-of-origin information ("COI") to conclude there was state protection in Indonesia. She did not raise the same complaint against the Adjudicator. Nevertheless, I find the Adjudicator had given clear reasons for his decision that the Applicant would not be denied of reasonable state protection in Indonesia.

41. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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 A1 in the screening process. A1 had been given reasonable and sufficient opportunities to state and elaborate her case and A2’s case. The Adjudicator was acquainted with the facts. He considered the Applicants’ claims carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicants’ non-refoulement claims.

Conclusion

42.  The Applicants’ complaints are not reasonably arguable. They have no realistic prospect of success in the sought judicial review.  I therefore refuse to grant them leave for judicial review.”

The appeal

11.  On 7 May 2019, the applicant filed a notice of appeal.  The followings were stated in the notice:

“ In the matter of Order 53 rule 3, I Dewi Anggraeni and Dewi Anggnaeni Aisha want to appeal for to see my case again in Your Honour’s Court.” (sic)

12.  In her affirmation in support filed on 25 June 2019, the 1^st applicant deposed that:

“ … I would like to appeal in your Court that I cannot go back in my Country because my life is in Danger. So I would kindly request your Honour’s to please accept my appeal.”

13.  The applicants lodged their written submissions on 1 August 2019.  In the submissions, the case ST v Director of Immigration [2014] 4 HKLRD 277 was cited and passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 were quoted for the proposition that high standards of fairness are required in the determination of a torture claim.  It was submitted that the Board acted in a procedurally unfair manner in dealing with her application.  References were also made to to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably. 

14.  By a letter dated 7 May 2019, consent was given that this appeal might be heard before a two-judge court.

15.  We heard the appeal on 3 September 2019.

General principles

16.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.  

(1)  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 scrutinizing 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of 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 made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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 this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review. 

Discussion

17.  In the present case, the Board rejected the applicants’ claim due to the finding that they would not face a real risk of harm if refouled.  The Board also found that State protection was available to them.  As explained above, assessments of risk and availability of state protection are within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on the public law grounds.  After rigorous examination and anxious scrutiny of the case, the Judge did not find any realistic prospect of success in challenging the findings of the Board in the intended judicial review.

18.  Essentially, what was stated in the notice of appeal and the 1^st applicant’s affirmation was an invitation to this Court to reassess the applicants’ claim afresh.  As explained, this is not a viable course in an appeal against the judge’s refusal to grant leave to apply for judicial review.

19.  Nothing stated in the skeleton submissions constitutes viable grounds of appeal.  No particulars were provided as to how the Board acted in a procedurally unfair manner.  There is no basis for us to accept that there was any procedural unfairness in the present case.   

20.  We agree with the Judge that leave to apply for judicial review should be refused.

21.  For these reasons, we dismiss the appeal.