Case Detail

CACV 118/2020

[2021] HKCA 152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 118 OF 2020

(ON APPEAL FROM HCAL 1172/2018)

____________________

RE:

Nila Agustina

Applicant

____________________

Before: Hon Lam VP, Chu and Pang JJA in court

Date of Written Submissions: 4 January 2021

Date of Judgment: 5 February 2021

___________________

J U D G M E N T

___________________

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

1. On 17 December 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 12 November 2020. In that judgment we dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 6 May 2020 dismissing her application for leave to apply for judicial review.

2. 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 (“CFA”) at the discretion of this Court or the CFA if 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 CFA for decision.

3. Pursuant to section 24(2) of the Ordinance an appellant has 28 days from the date of the judgment to seek leave to appeal to the CFA. In the present case, the time for the Applicant to seek leave to appeal against this Court’s judgment of 12 November 2020, expired on 10 December 2020.

4. As the Applicant did not apply for leave to appeal to the CFA within time, good and sufficient ground must be shown by the Applicant before the court will exercise its discretion to grant an extension of time: see: section 24(5) of the Ordinance. See also: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another (unreported) CACV 191/2013, 29 January 2015.

5. In the present case, the Notice of Motion was late by 7 days. While the delay is not lengthy, the Applicant has not given any explanation or justification for the delay.

6. In her Notice of Motion for leave to appeal to the CFA, the Applicant raised the following matters in support of her application:

“ I would like to inform the Court of Final Appeal. There is some error in law in my decision maker just relied on COL Information and my previous facts which were favor on reject my claim. Actual life occur different situation then mentioned COL Information. Officer and Court prefers to ignore the overwhelming of the evidence of this vialance towards a bias and formula approach unlikely fairly access the danger of my life and clearly calcite to reject my claim.” [sic]

7. Pursuant to the Court’s directions of 18 December 2020, Applicant lodged her written submissions in support on 4 January 2021. In those submissions, the Applicant stated that that it was unfair that the Judge never heard her in person. She requested a hearing at this Court for her present Notice of Motion.

8. Practice Direction 2.1, Application for Leave to Appeal to the Court of Final Appeal filed in the Court of Appeal in Civil Cases, provides at section 3:

“ Subject to any direction or order made by the Court, all leave applications will be dealt with and determined on paper without an oral hearing. …
(g) … The Court may, if it considers appropriate, direct an oral hearing to be held to determine the application. …”

9. Having reviewed the Notice of Motion and the applicant’s written submissions, we are of the view that it is appropriate to determine the Notice of Motion on paper without an oral hearing.

10. The Applicant submitted that because she was not provided with language assistance and legal representation on the assessment of BOR 2 risk[1] by the Director of Immigration (“the Director”) after her non-refoulement claim was rejected on all other applicable grounds, she did not understand the process or reason for rejection. She argued that the Director made his decision without ensuring that she was aware of her rights and of the definition of BOR 2 risk. As well, the Applicant stated that the decision of the Torture Claim Appeal Board (“the Board”) was not read to her via an interpreter.

11. In addition, the Applicant submitted that the Court and the authorities were negligent and failed to meet a standard of care to ensure that non-refoulement claimants like the Applicant were not put at a disadvantage as a result of not understanding English and the court’s procedures. The Applicant further submitted that the authorities have shown a discriminatory attitude toward claimants in the quick disposal of such claims.

12. The arguments in the Applicant’s current submissions were not raised before the Judge or in the substantive appeal at this Court. An application for leave to appeal to the CFA is not the occasion for new arguments to be canvassed.

13. Moreover, such arguments do not give rise to valid public law grounds for reversing the Board’s decision. The Applicant’s arguments regarding lack of legal or language assistance are untenable. As this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desires: see Re Zunariyah[2018] HKCA 14; Re Lopchan Subash[2018] HKCA 37; Re Gurnishan Singh[2018] HKCA 704; Re Gurung Sagar[2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office[2019] HKCA 1403.

14. In addition, the Applicant’s statement that the Judge never heard her in person is inaccurate. According to the court’s records, the Applicant was present at an oral hearing before the Judge on 23 October 2019.

15. The Applicant has not raised any reasonably arguable ground of appeal on the merit of her claim, or any discernible or arguable ground for disturbing our judgment. The arguments in her current submissions do not identify any specific error in our judgment or the judgment of the court below.

16. In any event, in the circumstances, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

17. For these reasons, we refuse to extend time for her late application for leave to appeal to the CFA, and dismiss the Applicant’s Notice of Motion accordingly.

(M H Lam)
Vice President

(Carlye Chu)
Justice of Appeal

(Derek Pang)
Justice of Appeal

The applicant acting in person

[1] This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

CACV 118/2020

[2020] HKCA 909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 118 OF 2020

(ON APPEAL FROM HCAL 1172/2018)

________________________

BETWEEN

	NILA AGUSTINA	Applicant
	And
	TORTURE CLAIMS APPEAL BOARD	Putative Respondent

________________________

Before:

Hon Lam VP and Pang JA in court

Date of Judgment:

12 November 2020

________________________

J U D G M E N T

________________________

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

Introduction

1. On 6 May 2020, Deputy High Court Judge Bruno Chan (“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 11 June 2018. In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 16 October 2015 and 29 December 2016 rejecting the applicant’s non-refoulement claim.

2. On 18 May 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3. The applicant is an Indonesian national. She was previously employed as a foreign domestic helper. She last arrived in Hong Kong on 10 April 2013 with permission to work as such until the expiration of her contract on 10 April 2015 or within 14 days of termination, whichever was earlier.

4. On 20 November 2013 the applicant’s employment was prematurely terminated. She has overstayed since 5 December 2013 and was arrested by the police on 20 December 2013. The applicant raised a non-refoulement claim on 31 December 2013.

5. The applicant’s claim was based on the fear that if she returned to Indonesia, she would be harmed or even killed by a loan shark. The factual background was succinctly summarized by the Judge in [1] – [4] of the Form CALL-1 ([2020] HKCFI 142).

6. By notices of decision dated 16 October 2015 and 29 December 2016, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and decided the claim against her. The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3]; the latter BOR 2 risk[4].

7. The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 13 January 2017. The Board found the evidence of the applicant to be unreliable and, in any event, any problem with the loan sharks would merely be a private dispute. The Board considered that reasonable state protection was available; and internal relocation, viable. The Board dismissed the applicant’s appeal on 11 June 2018 on all the applicable grounds.

Decision of the court below

8. On 22 June 2018, the applicant sought leave to apply for judicial review against the Board’s decision. Her grounds as stated in her affirmation in support of her Form 86 were set out at [10] of the Judge’s decision (see following paragraph).

9. Following a hearing at which the applicant appeared in person, the Judge refused to grant leave on 6 May 2020 to apply for judicial review. His reasons were set out at [10] – [15] of the Form CALL-1 ([2020] HKCFI 142, HCAL 1172/2018), as follows:

“10.  On 22 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:
(1)  procedural impropriety in failure to conduct sufficient independent inquiry into the relevant COI or to conduct a critical analysis of them or to provide adequate reasons as to why certain materials which supported its decision were preferred over those which did not or to cherry pick those COI which supported its conclusion;
(2)  error/misdirection in law in failing to apply or properly apply the principle concerning the obligation of the state to adopt reforms and means to protect its citizens;
(3)  error/misdirection in failing to consider the psychological non-physical aspects of torture and/or CIDTP;
(4)  irrationality in failing to apply high standards of fairness in assessing her claim;
(5)  error/misdirection in law in failing to consider the psychological impact of the facts raised as part of the Applicant’s claim including threats and abusive language which she had suffered; and
(6)  irrationality in providing no sufficient basis to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement.
11.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or how did the adjudicator failed to apply high standards of fairness in assessing her claim, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state reforms to her claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or procedural unfairness in her process before the Board or in the Board’s decision being clearly and properly identified by the Applicant with sufficient particularity, I do not find any of these grounds reasonably arguable for her intended application.
12.  As has been repeatedly emphasized by the Court of Appeal, 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.
13.  The fact is that it has been established by both the Director and the Board in their respective 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.
14.  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.
15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Appeal to this Court

10. On 18 May 2018, the applicant filed her Notice of Appeal against the Judge’s decision, in which her stated grounds were:

(1)  the Respondent unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that it did not satisfy the requirement;
(2)  the Adjudicator acted in a procedurally unfair manner;
(3)  the Respondent’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense, or as a result of procedural errors or unfairness;
(4)  the Respondent failed to meet the greater care and duty owed to a self-represented claimant;
(5)  non-refoulement claimants should lodge official torture claims with the Director;
(6)  the applicant was confused and did not understand what happened in the hearing as the hearing bundle was not provided earlier or with interpretation;
(7)  the applicant answered all questions honestly, and it aggravates her that her credibility was found questionable; further the hearing was unfair due to the Board’s lack of care in making appropriate arrangements in relation to the hearing bundle.

11. This Court directed on 1 September 2020 that the applicant must lodge her written submissions on appeal by 30 September 2020, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials that had already lodged. As the applicant 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. As the arguments in the applicant’s grounds of appeal could have been but were not raised before the Judge, that is another reason why they should not be entertained.

16. Finally, the Board rejected the applicant’s claim for non-refoulement protection based on its assessment that her evidence was unreliable; that the risk of harm, if any, stemmed from a private dispute; and that state protection was available and internal relocation viable. Such findings are squarely within the province of the Board. The court will not interfere with such findings 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 and we dismiss the appeal.

(M H Lam)	(Derek Pang)
Vice President	Justice of Appeal

The applicant acting in person

[1] 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).

[2] 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 and its 1967 Protocol.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4] This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

NILA AGUSTINA v. TORTURE CLAIMS APPEAL BOARD

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