POINEM v. TORTURE CLAIMS APPEAL BOARD/NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 48/2020

[2020] HKCA 911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 48 OF 2020

(ON APPEAL FROM HCAL 1634/2018)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court):

Introduction

1.  On 23 January 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant the applicant leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 3 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 17 August 2017 rejecting the applicant’s non-refoulement claim.

2.  On 9 March 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.  The applicant is an Indonesian national.  She came to Hong Kong in June 2003, and was employed as a foreign domestic helper until August 2015 when her employment was terminated. She overstayed and was arrested by police on 15 September 2015.  On 25 September 2015, she lodged a non-refoulement claim. 

4.  The applicant’s claim was based on the fear that if she were to return to Indonesia, she would be harmed or even killed by her ex-husband.  The factual background was succinctly summarized by the Judge in [3] of the Form CALL-1 ([2020] HKCFI 250).

5.  By notice of decision dated 17 August 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and found against the applicant.  Those grounds were BOR 3 risk[1], persecution risk[2], torture risk[3] and BOR 2 risk[4]. 

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 24 April 2018.  The Board found that the applicant was not a credible witness, rejected the events in support of her claim and concluded that she would not face any real risk of proscribed harm if she were to be refouled to Indonesia. The Board dismissed the applicant’s appeal on 3 August 2018.

Decision of the court below

7.  On 14 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In her Form 86 and affirmation in support, she did not specify any grounds for judicial review, although she did state that she was afraid of returning to Indonesia because her ex-husband still wanted to kill her, and was still asking her for money.

8.  Following a hearing on 31 July 2019, at which the applicant appeared in person, the Judge refused to grant leave to apply for judicial review on 23 January 2020.  The reasons for the refusal were set out at [11] – [13] of the Form CALL-1 ([2020] HKCFI 250, HCAL 1634/2018) as follows :

“ 11.  The applicant appeared before me. She said that she had no complaint against either the Immigration officer or the Adjudicator of the Board. She further said that the Board’s Decision was correct. She made this application simply to ask this Court to extend her stay in Hong Kong. I explained to her that this Court has no power to extend her stay. This is the power of the Director.

12.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

13.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the intended judicial review. Accordingly, I dismiss her application.”

9.  According to the records of the hearing of 31 July 2019, the applicant did not only say that she applied for judicial review simply to “extend her stay in Hong Kong”, she also said she had a problem in Indonesia and cannot go back.

Appeal to this Court

10.  On 9 March 2020, the applicant filed her Notice of Appeal against the Judge’s decision.  No grounds of appeal were stated in that Notice.  Pursuant to the court’s directions of 29 April 2020 and 13 June 2020, the applicant lodged a Supplemental Notice of Appeal dated 2 July 2020 in which she set out the following:

(1)  the applicant was forced to marry her ex-husband by her parents;

(2)  the applicant would be in danger if she were to return to her country, because her ex-husband is still looking for her and would kill her;

(3)  the applicant would also be in danger if she were to return to Indonesia because she is currently living with a woman with whom she was involved in a same-sex relationship, and her family has told her that she would be killed or buried alive in a grave if she were to return with her girlfriend;

(4)  her girlfriend would also be in danger if they were to go back as she and her girlfriend are from Muslim families and Islam does not allow same-sex relationships.

11.  This Court directed on 1 September 2020 that the applicant must lodge her written submissions on appeal on 30 September 2020, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.  As the applicant has failed to lodge any submissions as directed, this appeal is disposed of on paper without a hearing.

Legal principles

12.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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 or for running arguments which could and should have been raised but not raised before 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

13.  The applicant did not in her grounds of appeal provide any particulars in support, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing that decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

14.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed on that basis alone.

15.  Except for the risk of harm from the ex-husband, the matters set out in the applicant’s Supplemental Notice of Appeal were not raised before the Judge; nor did they arise from the Judge’s decision.  Instead, these seem to be potential new grounds for non-refoulement. If there has in fact been a significant change of circumstances since the applicant first raised her claim, it is open to her to request the Director to reconsider her claim in light of her current circumstances under Section 37ZO of the Immigration Ordinance, see Ram Chander v Director of Immigration [2018] HKCA 585; Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369; but it is not a ground for appealing the Judge’s decision.

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its assessment that she was not a credible witness, that the events in support of her claim should be rejected, and that the applicant did not face any real risk of proscribed harm if she were to be refouled to Indonesia.  Such findings are squarely within the province of the Board; the court will not interfere with such assessments unless they are reversible on public law grounds.

17.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  He has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave. There is no reasonably arguable ground to challenge the decision of the Judge.

18.  For these reasons, we do not see any prospect of success in this appeal.  Accordingly, this appeal is dismissed.