RE NURWATI

CACV 517/2020

[2021] HKCA 671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 517 OF 2020

(ON APPEAL FROM HCAL NO. 617 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 12 August 2020 in HCAL 617/2018 refusing leave to the applicant to apply for judicial review against the decisions of Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 11 April 2017 and 27 March 2018 in which the Board confirmed the decisions made by the Director of Immigration (“the Director”) dated 12 February 2016 and 4 May 2017.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 22 February 2021, the applicant shall lodge with the court two sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 7 April 2021 (due to Easter holidays) but she failed to do so.  The Registrar further directed that in the event the applicant failed to lodge her skeleton argument, she shall be deemed to have waived her right to have an oral hearing for this appeal.  As it is appropriate to do so, this Court will proceed to consider this appeal on paper. 

Background

3.  The applicant is a national of Indonesia who last arrived in Hong Kong on 20 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 20 August 2015 or within 14 days of its early termination. Her employment contract was prematurely terminated on 21 January 2014.  However, she did not depart and instead overstayed and was arrested by police on 11 June 2014.  On 19 June 2014, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband for failing to give him money for his spending. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1919. 

4.  By the Notice of Decision dated 12 February 2016 and Notice of Further Decision dated 4 May 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.  On 22 February 2016 the applicant lodged an appeal to the Board against the Director’s decision dated 12 February 2016, and for which the Board did not schedule any oral hearing and instead dealt with her appeal in her absence on papers.  By its decision of 11 April 2017, the Board dismissed her appeal.  The Board accepted the applicant’s claim of being abused by her husband and threatened by the loan shark in Indonesia, but she failed to show a real and substantial risk that if refouled, she would face a serious violation of her human rights and serious or intolerable harm.  The Board found that her problems were domestic or personal monetary disputes with no official involvement and state/police protection would be available to her.  Further, internal relocation is reasonable as she could move safely away from her home district to other areas in large cities such as Jakarta where she can re-establish her life and work without any risk of being located by her husband or the loan shark.  For the aforesaid reasons, her claim for non-refoulement protection failed on all applicable grounds.  

6.  On 29 May 2017, the applicant again lodged an appeal to the Board against the Director’s Further Decision dated 4 May 2017, but she was late for 8 days.  The Board proceeded to determine, as a preliminary decision without a hearing, whether to allow the late filing of the applicant’s notice of appeal under section 37ZT of the Ordinance.  By a written notice dated 27 March 2018 the Board refused to allow the Applicant’s late filing of her notice of appeal as she failed to provide any statement of reason for her late filing or any documentary evidence in support as stipulated by section 37ZT(1) of the Ordinance, and that in the absence of any additional facts or representation from her which may be relevant to her non-refoulement claim on all applicable grounds including BOR 2 risk, it was not satisfied that there is any special circumstance which would make it unjust not to allow the late filing of her notice of appeal.  The Board therefore refused her application for time extension.

7.  On 11 April 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decisions, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of the decisions of the Director and the Board without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

The Judge’s decision

8.  The Judge disposed the application on paper and by the CALL-1 Form dated 12 August 2020, the Judge refused to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [15] – [19] for his refusal to grant leave:

“15.  …… As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 

17.  In the Applicant’s case, clearly on the facts of her claim and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground, as correctly found by the Board that the Applicant has not identified what additional facts or grounds that she would have put before the Board at an oral hearing or otherwise that could advance her case under the BOR 2 risk ground.   

18.  Furthermore, the fact is that it has been established by both the Director and the Board in their earlier 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 part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  In the premises and having considered 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.”

Application for an extension of time to appeal 

9.  On 27 August 2020, the applicant issued a summons seeking an extension of time to appeal against that decision, as the 14-day period for her to file her appeal under Order 53, rule 3(4) of the Rules of High Court, Cap. 4A ended on 26 August 2020.  The Judge took the view that a delay of 1 day was insignificant, for which the applicant explained in her affirmation that she received the decision late in the mail.  Given the impact of the Covid-19 pandemic on the general postal service during the material time when it was in operation only 3 days per week, and also on the High Court Registry with reduced operation hours and limited people flow, the Judge accepted the applicant’s explanation for her insignificant delay and granted her an extension of time to file her appeal.

The Appeal

10.  On 28 September 2020 , the applicant filed her Notice of Appeal against the Judge’s decision.  She did not provide any ground of appeal save for saying that she wanted to challenge the Judge’s decision of 12 August 2020.  Pursuant to direction of the Registrar of Civil Appeals on 22 December 2020, the applicant shall lodge with the Court a supplemental notice of appeal and set out the grounds of appeal in accordance with paragraphs 20 to 22 of Practice Direction 4.1.

11.  On 28 December 2020, the applicant lodged the supplemental notice of appeal.  Despite being given a second chance to provide proper grounds of appeal, the applicant only briefly reiterated the background of her case and that she could not go back to Indonesia as her life was still in danger due to the threat from her abusive husband.

General Principles

12.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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 had failed to provide any proper ground of appeal against the Judge’s decision and her appeal is doomed to fail.

14.  Upon our careful review of the Board’s decision, we are satisfied that the Board had duly considered the applicant’s case of domestic violence and had rightly found that since her husband took another wife in 2007 and upon the applicant’s decision to sever her connection with her husband by changing her contact phone numbers, the husband did not appear to have contacted the applicant for ten odd years.[5] As such, the Board did not find that she would face any existing and real risk of harm should she return to Indonesia and there was no suggestion that she would be at risk of harm from the public authorities or any sate agent that would qualify her claim on any of the applicable grounds.  The findings are well within the province of the Board which in our view, is eminently reasonable and justified.

15.  We are also satisfied that the Judge had reviewed the Board’s decisions with vigorous examination and anxious scrutiny and there is no merit in the applicant’s case.

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