RE LUSI NOVIYANTI

CACV 109/2018

[2018] HKCA 462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 109 OF 2018

(ON APPEAL FROM HCAL 818 OF 2017)

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REASONS FOR JUDGMENT

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Hon Barma JA (giving the Reasons for Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 13 April 2018 refusing leave to the applicant to apply for judicial review. The applicant did not attend at the hearing of the appeal and we therefore dismissed the appeal, and indicated that we would hand down our reasons for doing so later. These are those reasons, from which it will be clear that the appeal was without merit.

2.  The applicant is an Indonesian national.  Her last arrival in Hong Kong was on 8 March 2013.  She came to work as a foreign domestic helper.  Her contract was prematurely terminated on 30 April 2013 but she did not depart from Hong Kong.  She overstayed and was arrested by the police on 9 March 2014.  On 12 March 2014, she lodged a non-refoulement protection claim.  The basis of her claim was that if she were to return to Indonesia her creditor WW will kill her.  Her husband also attacked and threatened her because of the loan with WW.

3.  The Director decided against the claims on 19 November 2015.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a Further Decision of 3 November 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against her.

4.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 24 November 2016 and 5 September 2017, the Board dismissed the appeals on 12 October 2017 (“Board’s Decision”).

5.  The intended judicial review was in respect of the decisions by the Director and the Board’s Decision.  The Form 86 filed by the applicant on 30 October 2017 did not give any grounds.

6.  In her affirmation of 30 October 2017, she gave the following grounds:

(1)  failure to conduct a fair or proper consideration of the COI in their assessment of her claim;

(2)  failure to consider properly or adequately the risk of harm to her from her creditor or her husband;

(3)  failure to consider properly the concept of state acquiescence in the risks of harm to her;

(4)  failure to make proper or adequate inquiry into the effectivenessof steps taken by the state or the police to protect borrowers from money-lenders and domestic violence from abusive spouses; and

(5)  that their conclusion that it would be safe for her to return to Indonesia from future harm is without proper basis.   

7.  After reviewing the materials carefully, the judge refused to grant leave.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Board, he gave the following reasons for refusing leave at [12] to [14] of the CALL-1 Form of 11 April 2018:

“12. All of these grounds are such broad and vague statements that in the absence of any particulars or specifics provided by the applicant, it is simply impossible to know the basis for any of them, and as correctly found by both the Director and the Board that her disputes with her creditor and her husband are both private and localized affairs, and in the absence of any evidence to suggest that either of their actions were sanctioned or acquiesced by the state or the police or with their consent or involvement, I do not see any basis or relevancy in ground (c) either.

13. As for ground (d) on inquiry into COI about the general effectiveness of state’s protection from risks from money-lenders to borrowers or from domestic violence by abusive husbands, they do not alone constitute a sufficient ground once it has been established by both the Director and the Board that such risks to the applicant if any are confined to private and local matters and that internal relocation alternatives are available and reasonable, as pointed out by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526 at paragraph 29:

‘ Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of ‘a consistent pattern of gross, flagrant or mass violations of human rights’ (art 3(2) of the CAT), that alone does not as such constitutea sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be ‘personally at risk’. This is because the aim of the determination under CAT is to establish ‘whether the individual concerned would be personally at risk of being subjected to torture in the country to which she would return’. …’

14. Nevertheless, having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I am unable to find any error in law or procedural unfairness by either of them, or any failure on their part to apply high standards of fairness in the process of arriving at their conclusion.  In the premises and for these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse her leave application.”

8.  In the notice of appeal of 20 April 2018, the applicant put forward the following grounds for appeal:

(1)  the judge did not consider the COI;

(2)  the Board and the Director failed to give reasons for dismissing her claim based on BOR 3 risk and/or there was insufficient basis to dismiss her claim based on BOR 3 risk; and

(3)  failure to take into account her psychological strain because of the repeated threats to her.

9.  In her skeleton submissions dated 20 June 2018, the applicant said the judge erred in holding that the grounds for judicial review lacked particulars.  The grounds must be viewed together with her non-refoulement claim.  She also repeated the grounds in the Notice of Appeal.

10.  As we have said, the applicant did not attend the hearing of the appeal.  Having considered the submissions of the applicant in light of the materials before us, we agree with the judge’s observations.

11.  The Board dealt with COI at §§24, 61 and 62 of the Board’s Decision and the risk of harm from creditor and her husband at §§71, 72 and 75.  The Board did not have to deal with the issue of state acquiescence because the applicant never alleged any state involvement (§§40 – 42 of the Board’s Decision).  Also, the Board did not have to consider whether the stateor police are effective in protecting the applicant from the creditor and abusive husband because the Board rejected the applicant’s evidence regarding both the creditor and husband.

12.  The applicant was unable to demonstrate any error committed by the Board in arriving at the conclusions above.  She cannot establish any of the grounds for judicial review in her affirmation dated 30 October 2017.

13.  As for the grounds of appeal in the Notice of Appeal, Ground (1) alleges that the judge failed to consider COI.  This argument is misconceived because the primary decision maker is the Board.  Though 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.  See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

14.  The judge held at [13] of CALL-1 Form that the Board had properly considered the COI in arriving at its decision.  There was no need for the judge to evaluate the COI himself in detail.  This ground is bound to fail.

15.  For Ground (2), the Board did give reasons for dismissing her claim based on BOR 3 risk at §81.  The Board has also given adequate consideration of the evidence and COI in the preceding paragraphs. The Director gave reasons for dismissing the claim based on BOR 3 risk at §§40 – 42 of the Director’s Decision.  There is no merit in this ground.

16.  For Ground (3), the applicant had never raised the issue of “psychological strain” before the Director or the Board.  Further, besides the bare assertion by the applicant at the appeal stage, there was no evidence of the existence of this condition.  In any event, the applicant failed to show how this condition can assist her claim under any of the applicable grounds.  There is no merit in this ground.

17.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

18.  For these reasons, we did not see any prospect of success in the intended application for judicial review and we dismissed the appeal accordingly.