Case Detail

CACV 1 /2020

[2020] HKCA 669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1 OF 2020

(ON APPEAL FROM HCAL NO 1042 OF 2018)

________________________

BETWEEN
	Novianti	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

________________________

Before: Hon Kwan VP, Cheung JA and Chu JA in Court

Date of Written Submission: 24 June 2020

Date of Judgment: 14 August 2020

____________________

J U D G M E N T

____________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Cheung JA) handed down on 9 June 2020 ([2019] HKCA 444) dismissing her appeal against the decision of Deputy High Court Judge Bruno Chan on 23 December 2019 ([2019] HKCFI 2666) refusing leave to apply for judicial review concerning her non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 16 June 2020 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant has lodged her written submission on 24 June 2020. Having considered the Notice of Motion and the written submission, we think it appropriate to determine this application on paper and will proceed to do so.

3. By a Notice of Decision dated 16 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

4. The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decision and her appeal was dismissed by the Board on 1 June 2018.

5. The applicant filed a Form 86 on 8 June 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. DHCJ Bruno Chan dismissed her application on 23 December 2019 after a hearing on 15 October 2019.

6. The applicant filed a Notice of Appeal against the decision of the judge on 2 January 2020. The hearing date of the appeal on 27 May 2020 was vacated as the applicant failed to lodge her skeleton argument by the extended deadline prescribed under the direction of Kwan VP on 17 April 2020. The appeal was dealt with on paper and was dismissed by the Court of Appeal on 9 June 2020. The applicant filed this Notice of Motion on 15 June 2020 for leave to appeal to the Court of Final Appeal.

7. In the Notice of Motion, the applicant stated as her grounds of appeal that she has problem in her home country in Indonesia and she cannot go back because danger is still there. She requested the court to allow her to process her case further and give her some time to stay here so that she can solve her problem.

8. In her written submissions, she submitted that:

(1)  She is unable to pay back her loan. In Indonesia, death and torture are common in loan related cases. Loan sharks are dangerous and they do not mind killing anyone who fails to repay a loan.
(2)  Her enemies are still looking for her and will kill her when they find her. Even the police cannot protect her from them. Her enemies have lots of manpower and strong political support which makes them so powerful.
(3)  Death and torture in police custody of innocent persons are common in her country and people who are responsible do this freely due to their power. Even if the police arrest the culprits sometimes, they could bribe the police and come out due to the corrupt system.

9. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal , from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10. The applicant’s grounds of appeal and submissions do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. She has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing her appeal and she has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11. We therefore dismiss her application for leave to appeal to the Court of Final Appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 1 /2020

[2020] HKCA 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1 OF 2020

(ON APPEAL FROM HCAL NO 1042 OF 2018)

________________________

BETWEEN

	Novianti	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

________________________

Before:

Hon Kwan VP and Cheung JA in Court

Date of Judgment:

9 June 2020

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 23 December 2019[1]. By that 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. This appeal is dealt with on paper without a hearing due to the non-compliance by the applicant of the directions given by the Registrar of Civil Appeals as mentioned below.

2. The applicant is a national of Indonesia of 35 years old. She previously worked in Hong Kong as a domestic helper and her last employment in Hong Kong ended on 25 August 2013. She last entered Hong Kong as a visitor on 3 October 2013. She overstayed and was arrested by the police on 3 April 2014. She lodged a non-refoulement claim on 22 April 2014. Her claim was made on the basis that she would be harmed or killed by her husband and his creditor if she were to be returned to Indonesia.

The Director’s decision

3. By a Notice of Decision dated 16 February 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4. Taking into account that the applicant had not met her husband again when she returned to Indonesia in 2010 and 2012 and that he had changed his telephone number to avoid her, the Director found there is no substantial ground to believe that there is a real risk of being harmed or killed by her husband as perceived. The Director considered that the asserted ill-treatment inflicted by the creditor had not attained a minimum level of severity such that non-refoulement protection is warranted as the applicant had never been physically injured by him. The dispute is private dispute with nothing to do with her race, religion, nationality or membership of a particular social group or political opinion. There is nothing to show that the state was involved in, was indifferent to or had provided any form of encouragement to her husband or the creditor in threatening or abusing her. The Director assessed that state protection is available and internal relocation option is viable so the perceived risk of harm, if any, is avoidable.

The Board’s decision

5. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 20 March 2018. The Board considered that the applicant’s experiences do not amount to persecution, ill-treatment for the purpose of BOR 3 risk or torture. Her problems are of personal nature. There is no suggestion that the Indonesian government has any adverse interest in her or that her rights under BOR 2 risk would be violated. The alleged risk of harm was confined to her previous home area in Jakarta. The applicant’s family had left Jakarta and she also confirmed that she has no intention of returning to that area. Thus, the Board held that the applicant’s claim fails on all applicable grounds and rejected the appeal on 1 June 2018.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 8 June 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

7. She put forward these grounds for her intended challenge:

(1)     procedural impropriety in the failure of the Director and the adjudicator to conduct sufficient independent inquiry into the relevant Country of Origin Information (“COI”) materials or to conduct a critical analysis of such materials or to provide adequate reasons for preferring certain information over the others, and for cherry picking those materials to support their conclusions;
(2)     procedural impropriety in their failure to consider the concept of extended state acquiescence in the consideration of her claim;
(3)     error or misdirection in law in their failure to apply or properly apply the obligation of a signatory state to adopt reforms on means of redress aimed at ensuring the safety of its citizens which are effective in any event;
(4)     irregularity in their failure to give reasons of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk;
(5)     error or misdirection in law in their failure to take into account the consideration of psychological strain and threats to the applicant resulting from repeated threats to her person or to members of her family; and
(6)     irrationality in their decision as her creditor was still looking for her and that she cannot relocate to other place as she would be traced or located anywhere in Indonesia.

The judge’s decision

8. The applicant appeared at the hearing before the judge on 15 October 2019. The judge considered that the applicant’s grounds are just broad and vague assertions without particulars or elaboration as to how they applied to her case. He did not find any of them reasonably arguable. And it was factually incorrect to claim that the Director and the adjudicator did not give reasons for their assessment of her BOR 3 risk. Having considered the decisions of the Director and the Board with vigorous examination and anxious scrutiny, the judge did not find any error of law or procedural unfairness, or failure to apply high standards of fairness in the consideration and assessment of the applicant’s claim. As the applicant does not have any prospect of success in her intended judicial review, the judge dismissed the leave application on 23 December 2019.

The grounds of appeal

9. The applicant filed a Notice of Appeal on 2 January 2020 against the judge’s decision. Her grounds of appeal are that the decision is away from the facts and reality related to her case and there is no transparency in the decision.

Non-compliance of the Registrar’s directions

10. Directions were given by the Registrar of Civil Appeals on 10 March 2020 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.

11. The appeal was scheduled to be heard on 27 May 2020[6]. On 17 April 2020, Kwan VP extended the deadline for the applicant to comply with the Registrar’s directions to lodge a skeleton argument to 8 May 2020[7].

12. The applicant failed to lodge a skeleton argument on or before 8 May 2020. As the directions of the Registrar were not complied with, she shall be deemed to waive her right to have an oral hearing and elect to have the appeal disposed of on paper. By letter dated 15 May 2020, the court informed the applicant that the hearing date of 27 May 2020 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

13. 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.

14. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

Analysis and disposition

15. The applicant’s grounds of appeal are bare assertions without particulars, elaboration or evidence in support. They do not constitute viable ground to reverse the judge’s decision. She 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.

16. 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.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant (Appellant), acting in person

[1][2019] HKCFI 2666

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[6] The notice of hearing sent to the applicant by registered post was unclaimed and was returned to the court by post office.

[7] The letter notifying the applicant of the direction was returned to the court by the post office.

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

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