SITI JUMAIYAH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 465 /2019

[2020] HKCA 439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 465 OF 2019

(ON APPEAL FROM HCAL NO 2562 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 19 September 2019[1]. By his decision, the judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim. The appeal is dealt with on paper due to the non-compliance of an unless order as mentioned below.

2.  The applicant is a national of Indonesia of 47 years old.  She came to Hong Kong to work as a domestic helper on 16 December 2007.  Her employment contract was terminated prematurely.  She overstayed and was arrested by the police on 21 September 2010.  She lodged a torture claim in 2010 which was rejected by the Director on 10 October 2012. She then lodged a non-refoulement claim on 25 March 2014.  Her claim was made on the basis that she would be harmed or killed by her ex-husband if she were to be returned to Indonesia.

The Director’s decision

3.  Since the applicant’s torture claim had been rejected by the Director, the decision refusing her torture claim would not be reviewed under the Unified Screening Mechanism.  The Director proceeded to consider her non-refoulement claim on the grounds of BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. 

4.  The Director considered that the low intensity and frequency of past ill-treatment from the applicant’s ex-husband would indicate that her perceived risk of being harmed or killed upon her return to Indonesia is not likely to materialize.  Besides, the alleged threats arose from personal and family dispute.  The Director assessed that state protection is available and internal relocation option is viable so the perceived risk of harm, if any, is avoidable.  Thus, the non-refoulement application was rejected by the Director on 26 June 2017. 

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 23 August 2018.  At the hearing, the applicant stated that her ex-husband did not do anything adverse to her or to her family when she stopped sending money to him.  The Board found there is not a real risk she would be targeted for harm.  Therefore, the appeal was rejected on 15 October 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 14 November 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. She relied on the following grounds:

(1)     the Director and the Board were wrong in their respective decisions;

(2)     the Adjudicator failed to give her sufficient time and chance to arrange evidence in support of her case;

(3)     the Director failed to give due weight to country of origin information; and

(4)     the Director had failed to attain high standard of fairness.

The judge’s decision

7.  The applicant appeared before the judge at the hearing on 4 April 2019.  The judge held that she could not apply for judicial review of the Director’s decision without exceptional circumstances because she had appealed to the Board and the Board had made its decision, so her application for leave for judicial review of the Director’s decision must fail in limine.

8.  As for the Board’s decision, the applicant confirmed before the judge she had no complaint against the immigration officer or the adjudicator and that she had a fair hearing before the Board.  The judge held that the applicant’s grounds to seek judicial review are irrelevant to the findings of fact by the Board and also inconsistent with what she had said in court. She had no factual basis in support of her claim.  The judge considered that the applicant had failed to show that she has a reasonable chance of success in her proposed judicial review and dismissed the leave application on 19 September 2019.

The grounds of appeal

9.  The applicant filed a Notice of Appeal on 3 October 2019 against the judge’s decision.  A Supplemental Notice of Appeal was filed on 5 November 2019 upon the direction of the Registrar of Civil Appeals.

10.  The grounds of appeal stated in her Supplemental Notice of Appeal may be summarized as follows[5]:

(1)     her enemy wants to kill her in Indonesia so she cannot return to her home country;

(2)     the immigration officer did not consider her age, education and political status.  She was not given a lawyer or enough time at the oral hearing; and

(3)     the adjudicator had made up a decision before the hearing. 

Non-compliance of unless order

11.  The hearing of the appeal scheduled on 10 March 2020 was adjourned to 26 May 2020 due to the general adjournment of court proceedings for public health reasons. 

12.  Directions were given by the Registrar of Civil Appeals on 7 November 2019 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.   When the hearing date of the appeal was adjourned to 26 May, the deadline for the applicant to comply with the Registrar’s direction to lodge a skeleton argument was extended to 8 May 2020 by Kwan VP on 17 April 2020.

13.  The applicant failed to lodge a skeleton argument on or before 8 May 2020.  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By letter dated 15 May 2020, the court informed the applicant that the hearing date of 26 May 2020 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  Generally speaking, the Court of Appeal will not entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

16.  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 the appeal court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

17.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[6]. Therefore, the Court of Appeal will not entertain the applicant’s new grounds (including an allegation, unsupported by evidence, that because she had fallen in love with a Bangladeshi man, her family wanted to kill her the last time she returned to Indonesia) which were not raised in the original leave application at the Court of First Instance.

18.  In any event, the judge’s decision was well founded for reasons stated in paragraphs 12 to 23 of his decision.  The applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

19.  There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.