CACV 229/2022
[2022] HKCA 1276
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 229 OF 2022
(ON APPEAL FROM HCAL NO 2558 OF 2018)
________________________
BETWEEN |
| | WIWIK ROHYATIN | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
_____________________
| Before: | Hon Chow JA and ST Poon J in Court |
| Date of Written Submissions: | 1 August 2022 |
| Date of Hearing: | 19 September 2022 |
| Date of Judgment: | 10 October 2022 |
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J U D G M E N T
_______________
Hon Chow JA (giving the Judgment of the Court):
1. On 6 June 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 28 February 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 2 November 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 October 2017.
BACKGROUND
2. The Applicant is a national of Indonesia. She entered Hong Kong as a foreign domestic helper in 2016. Her last employment contract was terminated prematurely on 30 July 2016. She did not depart after the expiry of her limit of stay, and had overstayed since 14 August 2016. She was arrested by the police on 24 November 2016. By way of written representations dated 1, 5, 7, 9 December 2016 and 6 January 2017, she lodged a non-refoulement claim, alleging that, if refouled, she would be harmed or killed by her stepmother and creditor. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 515).
3. By a Notice of Decision dated 30 October 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s decision to the Board. On 2 November 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).
5. The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:
“Having considered the applicant’s evidence and seeking clarifications from her during cross-examination, the Board dismissed her appeal. The Board observed that the applicant’s manner in giving evidence tended to be exaggerating and that she constantly changed the stories. Thus, the Board found that the core aspects of her claim lacked credibility [60]. Her oral testimony deviated largely from those stated in her non-refoulement claim statement [61]-[65]. It was also not plausible that the applicant did not know the amount of the debt which she undertook to repay [66]. Further, the Board found that it was at most a family dispute without state involvement or acquiescence [71] and that the nature, severity and frequency of the applicant’s alleged harm did not attain the level of severity which amounted to torture [74]. The Board also found that she could access to state protection [77]. As a result, the Board refused to accept her claim on all the applicable grounds.”
THE JUDGE’S DECISION AND TIME EXTENSION
6. On 14 November 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
7. On 28 February 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration[2018] HKCA 524 §14 (1).
14. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … …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.’
15. The applicant has submitted no valid ground to challenge the Board’s Decision.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”
8. On 1 June 2022, the Judge granted an extension of time for the Applicant to file her notice of appeal against the Order within 14 days from the date of the order in view of the general adjournment of proceedings (GAP) during the period from 7 March to 11 April 2022 (see [2022] HKCFI 1516).
THIS APPEAL
9. In her Notice of Appeal dated 6 June 2022, the Applicant stated as follows:
“… the grounds of this appeal are that the appellant will face hardship if he [sic] is to return back to his [sic] home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”
10. In her 5-page written submissions dated 1 August 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims, and contended that the Adjudicator of the Board acted in a procedurally unfair manner when dealing with her application, and failed to properly assess her credibility.
11. At the hearing of the appeal, the Applicant had nothing to add.
DISCUSSION
12. 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 of Appeal’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)).
13. Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
14. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 28 February 2022, and has failed to raise any viable ground of appeal against the Order.
15. The Applicant’s appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal | (ST Poon)
Judge of the Court of
First Instance |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] 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.
[3] 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.
[4] 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.