RE FITRI AMBARWATI AND ANOTHER

CACV 110/2018

[2018] HKCA 461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 110 OF 2018

(ON APPEAL FROM HCAL 547 OF 2017)

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J U D G M E N T

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

1.  This is the applicants’ appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 April 2018 refusing them leave to apply for judicial review. The applicants’ intended judicial review is against the decision of the Torture Claims Appeal Board dated 9 June 2017 dismissing their appeal against the decisions of the Director of Immigration dated 10 June 2015 rejecting their non-refoulement claims.

2.  The 1^st applicant is an Indonesian national.  She came to Hong Kong in 2010 and had been working as a domestic helper.  Her last arrival was on 4 February 2012, and she was allowed to stay until 6 April 2013, or two weeks after the termination of her employment contract, whichever the earlier.  The 1^st applicant’s employment contract was terminated prematurely on 13 March 2013.  She did not depart but overstayed illegally.  She surrendered to the Immigration Department on 12 April 2013, and lodged a torture claim on 21 May 2013 when she was charged with overstaying in breach of the stay condition.  The 1^st applicant’s torture claim was rejected on 16 December 2013.  On 14 January 2014, the board dismissed her appeal on the ground of late filing of the notice of appeal.  The 1^st applicant later raised a non-refoulement claim on 20 December 2013 based on the ground of cruel, inhuman and degrading treatment or punishment.

3.  The 2^nd applicant is the daughter of the 1^st applicant and was born in Hong Kong on 29 October 2013.  The 1^st applicant raised a non‑refoulement claim on behalf of the 2^nd applicant by way of a written representation dated 6 February 2014.   The 2^nd applicant’s claim is based on the same facts as those relied upon by the 1^st applicant.

4.  The 1^st applicant’s claim is based on two sources of fear of risks that she said she would face if she returned to Indonesia.  First, she said she, being a Muslim, would be harmed or even killed, by her uncle who had tried to convert her to become a Christian.  Secondly, it was claimed that the 1^st applicant would be harmed or even killed by a man named Sumarno, who practised black magic, and had hypnotized, raped, beaten, and threatened to kill her.   In the supplemental claim form dated 7 February 2015, the 1^st applicant also claimed that Sumarno had told her that he belonged to the Taliban terrorist organization.

5.  By a notice of decision dated 10 June 2015, the director rejected the applicants’ claim.  The director considered that the low intensity of the past assaults by the 1^st applicant’s uncle indicated a small future risk of harm upon the applicants’ return to Indonesia.  It was also assessed that, given the threats by Sumarno ceased when the 1^st applicant changed her phone number in 2011, the perceived risk of harm by Sumarno was not real, present, and imminent as the 1^st applicant claimed.  Furthermore, the lapse of time wouldlower or dissipate any risk of harm by both the applicant’s uncle and Sumarno.  The 1^st applicant’s problems with her uncle and Sumarno were private and personal in nature without the involvement of the state.  The availability of state protection and the viability of internal relocation would also lower or negate the level of risk.  The director’s decision covered the BOR 3 risk [1], the persecution risk [2], and the torture risk [3].

6.  By a notice of further decision dated 18 November 2016, the director also assessed the applicants’ BOR 2 risk [4], and determined the risk against them.

7.  The applicants appealed to the board against the director’s decisions.  An oral hearing was held on 5 January 2017, in which the 1^st applicant gave evidence and was given a chance to respond to the concerns that the board had in relation to her claim.  Having heard the 1^st applicant, the board found that the evidence given by her was incredible and the facts on which her claim was based was inconsistent and unreliable.  The board also shared the director’s view that state protection was available to the applicants and the internal relocation was a viable option for them.  The board dismissed the applicants’ appeal on 9 June 2017.

8.  The applicant filed a form 86 on 24 August 2017.  Neither the form 86 nor the 1^st applicant’s supporting affirmation made on the same date contained any grounds for seeking relief. The 1^st applicant only exhibited the board’s decision to her supporting affirmation.

9.  After summarising the facts and background of the case and considering the decisions of the director and the board, the deputy judge gave the following reasons at paragraphs 12 and 14 of the CALL-1 form in refusing leave to the applicants to apply judicial review:

“12. On 24 August 2017 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in her supporting affirmation of the same date did the applicants provide any grounds for review other than merely exhibiting a copy of the Board’s decision.

13. Nevertheless upon proceeding to consider both the decisions of the Director and the Board with rigorous examination and anxious scrutiny, I found that both the Director and the Board have applied all the relevant law and criteria in determining the applicants’ claim and for which A1 [ie, the 1^st applicant] has also been given the opportunity to fully present her case and that of her daughter A2 [ie, the 2^nd applicant] before both the Director and the Board, and I do not find any error of law or procedural unfairness in either of their decisions, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicants’ claims.

14. In the premises there is simply no prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

10.  In the notice of appeal dated 24 April 2018, the 1^st applicant stated the followings as her ground of appeal:

“* The applicant’s situation is in danger *
I am worried about the threats and danger that I am facing.  With this I will still appeal your decision that has rejected my application, which I think your decision at TCAB is not fair and have weighed according to what you know alone without considering the extent of my case.”  [sic]

11.  By a letter dated 27 April 2018, the 1^st applicant agreed that the appeal be heard by a two-judge court.

12.  In compliance with the directions given by Barma JA on 23 May 2018, the applicants lodged their skeleton argument on 27 June 2018.  In the skeleton argument, the applicants contended that:

(a)  the 1^st applicant would be in danger because of the threats by the 1^st applicant’s uncle and Sumarno if they returned to Indonesia, and she would be in an even more dangerous situation with her children (paras 1 and 6);

(b)  the Indonesian government did not provide adequate victim services; and Indonesia was the source, transit and destination country for human trafficking, and women and children were the target for sexual exploitation and forced labour (paras 2 and 3);

(c)  children born out of wedlock would be despised and subject to discrimination in Indonesia (para 5);

(d)  people in Muslim culture treat women of unarranged marriage as outcasts (para 7); and

(e)  the perceived inconsistency of the 1^st applicant’s testimony was due to the lapse of time between the interviews, and the 1^st applicant did not mention the name of Taliban during her 1^st interview with the immigration officer because she knew nothing about the organization at the time (paras 8 and 9). 

13.  We heard the appeal on 26 July 2018.  At the hearing she made a lengthy oral submission, which consisted for the most part of a reiteration of her reasons for fearing harm if she were to return to Indonesia, and of her submissions set out in the written submission.

14.  We have considered the 1^st applicant’s written and oral representations.  We note that the matters mentioned in paragraph 12(b)–(d) above had never been relied upon either in the form 86 or the 1^st applicant’s supporting affirmation for leave to apply for judicial review.  As this court has repeatedly said, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below.  This is equally apposite in an appeal against the refusal of leave.  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), see: Re Qadir Sher [2018] HKCA 160, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Ali Haider [2018] HKCA 222.  In any event, these contentions are devoid of merits.

15.  Indeed, the aforesaid matters had not even been advanced before the director or the board.  It is not the role of the court exercising its judicial review jurisdiction to assess the merits of a non-refoulement claim afresh. The court will only interfere with the decisions of the board if there exists legal error on public law grounds that justifies the interference. 

16.  As this court has previously held, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return, see: Re RS CACV 206/2012, 20 August 2013, para 59.  There is no basis for any suggestion that the extended concept of state acquiescence is applicable in this case.  There is no basis for us to accept that, upon their return to Indonesia, the applicants would face any real and personal risk of being subjected to human trafficking, sexual exploitation, or forced labour.

17.  In the decisions of the director (para 22) and the board (paras 27 – 29), the director and the board had both demonstrated that they were fully aware of the contentions about the inefficiency, or even corruption, in the Indonesian government.  They both had taken into account of the fact that the 1^st applicant had never reported the incidents to the police.  It is not the 1^st applicant’s case that she had been refused police protection after seeking it.  In such circumstances, we do not see any reasonably arguable basis to criticize the findings in relation to state protection. 

18.  Even if we assume (without deciding) that the children born out of wedlock would be subject to be despised or discrimination in Muslim culture and that women of unarranged marriage would be treated as outcasts, such ill-treatments would not satisfy the legal requirement of “minimum level of severity”.  As such, the applicants could not rely on these contentions to establish substantial grounds for risk of ill-treatments that meet the high threshold as required by law, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paras 172 – 174.

19.  It is evident in para 55 of the board’s decision that the board had given due regard to the 1^st applicant’s explanations concerning the inconsistency of her testimony.  The board is perfectly entitled to reach its own conclusion about the 1^stapplicant’s credibility based on the inconsistency.  We cannot discern any legal errors therein.  There is simply no basis for the court to interfere with the board’s finding on credibility.

20.  As this court has said many times before, evaluation of evidence is essentially a matter for the director and the board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment by the board in the hope that the court may consider the matter afresh in absence of any legal error, see: Re Lakhwinder Singh [2018] HKCA 246 and Re Daljit Singh [2018] HKCA 328. 

21.  Having considered the applicants’ skeleton and oral argument as well as the materials before use, we agree with the deputy judge’s decision in refusing leave to apply for judicial review.  We cannot see any errors of law or procedure in the proceedings before the director and the board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of merits of the non-refoulement claim is a matter for the director and the board, not for the court.  The deputy judge was plainly right to conclude that there is simply no prospect of success in the intended application for judicial review and that the leave application should be refused.

22.  For these reasons, we do not see any prospect of success in the intended application for judicial review, and dismiss the appeal accordingly.