CACV 269/2021
[2021] HKCA 1604
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 269 OF 2021
(ON APPEAL FROM HCAL NO 818 OF 2019)
____________________
| BETWEEN | SITI SOKIPAH | Applicant |
| | And | |
| | TORTURE CLAIMS APPEAL BOARD | Putative Respondent |
| |
And | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
____________________
Before: Hon Chow JA and S T Poon J in Court
Date of Judgment: 1 November 2021
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J U D G M E N T
_________________
Hon S T Poon J (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge To (“the Judge”) on 7 May 2021 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 14 March 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 6 June 2018 rejecting the Applicant’s non-refoulement claims.
2. This appeal was scheduled to be heard on 25 October 2021. Despite the directions contained in the letter from the High Court to the Applicant dated 25 August 2021, the Applicant failed to lodge the skeleton argument by the stipulated time. Accordingly, the hearing was vacated and we will deal with this appeal on paper.
BACKGROUND
3. The Applicant is a national of Indonesia. She came to Hong Kong as a domestic helper in 2007. Her last contract of employment was prematurely terminated on 27 December 2010 and she overstayed since then. She surrendered to the Immigration Department on 11 March 2015. The Applicant raised her non-refoulement claim by lodging a Supplementary Claim Form on 10 April 2015.
4. The Applicant claims that, if refouled to Indonesia, she will face a risk of being harmed or killed by her debt collector. Details of the Applicant’s claim have been summarised by the Judge at §§3-6 of the CALL-1 Form[1].
5. By a Notice of Decision dated 6 June 2018, the Director rejected the Applicant’s non-refoulement claims on all applicable grounds: risk of torture,[2] BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5] (“the Director’s Decision”).
6. The Applicant appealed the Director’s Decision to the Board. On 14 January 2019, the Board heard the appeal.
7. On 14 March 2019, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”). The Board found that even though the Applicant’s claims are relatively consistent, the potential harm from her creditor is speculative and she has never been harmed or pursued for repayment. The Board also found that even if she was threatened with harm, she would be able to obtain protection from the state and non-government organizations. While the Board found evidence of corruption in Indonesia, there were also countermeasures by the government such as establishing anticorruption courts. Furthermore, the Board found that the Applicant could relocate within Indonesia and there are programs run by organizations such as Red Cross to assist women upon their return to Indonesia. Therefore, the Board found that the Applicant was not entitled to non-refoulement protection in Hong Kong since she failed to substantiate any of the grounds under persecution risk, BOR 3 risk; BOR 2 risk; and torture risk.
THE DEPUTY JUDGE’S DECISION
8. On 25 March 2019, the Applicant filed a Form 86 and supporting affirmation seeking leave to apply for judicial review against the Board’s Decision.
9. The Applicant advanced no specific ground for seeking relief and only stated that she still has a problem with the debt collector and it is safer in Hong Kong. She did not complain of any procedural irregularity, unfairness, or unreasonableness.
10. The Judge emphasised that judicial review does not operate as a rehearing of a non-refoulement claim. Citing Nupur Mst v Director of Immigration[2018] HKCA 524, the court will only scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.
11. The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. The Judge did not find any evidence of procedural unfairness nor failure to adhere to a high standard of fairness by the Board and was not satisfied that there is any realistic prospect of success in the Applicant’s intended application for judicial review.
12. Accordingly, on 7 May 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.
THIS APPEAL
13. In her Notice of Appeal, the Applicant simply wrote that she would like to reject and review the Board’s Decision because they disregarded her dangerous situation. She did not provide any details or particulars in her grounds.
DISCUSSION
14. 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
15. The Applicant has not demonstrated 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 (see Re Iqbal Parvaiz[2020] HKCA 76 at §7.1).
16. For the reasons above, the Applicant has not shown any errors in the Judge’s decision or viable grounds of appeal.
17. We agree with the Judge that the Applicant’s intended judicial review is not reasonably arguable and has no prospect of success. Leave to apply for judicial review should be refused. Accordingly, we dismiss the appeal.
(Anderson Chow)
Justice of Appeal | (S T Poon)
Judge of the
Court of First Instance |
The Applicant, unrepresented, acted in person.
[1][2021] HKCFI 1306.
[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 her 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 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.