CACV 250/2022
[2022] HKCA 1277
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 250 OF 2022
(ON APPEAL FROM HCAL NO 1051 OF 2019)
________________________
BETWEEN |
| | SITI ROMLAH | 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 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 21 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 13 June 2022 refusing to grant leave to the Applicant to apply for judicial review (“the Order”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 July 2018.
BACKGROUND
2. The Applicant is a national of Indonesia. She came to Hong Kong in 2005 to work as a foreign domestic helper. After her employment contract was terminated on 2 January 2008, she was required to leave Hong Kong by 16 January 2008. She overstayed, and was arrested on 4 January 2009 for the offences of possession of an identity card relating to another person and overstaying in Hong Kong. She was later convicted of those offences and sentenced to a total of 12 months’ imprisonment on 20 January 2009. She was discharged from prison on 4 September 2009. In the meantime, she lodged a torture claim[1] by a written representation on 9 April 2009. That claim was rejected by the Director on 20 January 2012. By a written signification on 11 June 2013, she lodged a non-refoulement claim. Her claim was on the basis that, if refouled, she would be harmed or killed by her stepfather who had previously attempted to rape her 3 times between August and November 2003, and he did not want her to report to the police or disclose his previous attempts to rape her. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 1568).
3. By a Notice of Decision dated 20 July 2018, the Director dismissed the Applicant’s non-refoulement claim on the following applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s decision to the Board. On 15 April 2019, 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.
“The Board accepted that the applicant’s step-father attempted to rape her three times in late 2003 [46]. However, the Board considered that there was not a real chance that her step-father would harm her or try to kill her because there was no reason for him to suppose that she told anyone that he had previously tried to rape her [48]. It was satisfied that internal relocation was an option open to her [49 & 50]. Thus, the Board rejected the applicant’s claim and dismissed her appeal.”
THE JUDGE’S DECISION
6. On 17 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
7. On 13 June 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“12. 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).
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
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. There is no valid ground from the applicant 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.”
THIS APPEAL
8. In her Notice of Appeal dated 21 June 2022, the Applicant stated that she wanted to challenge the decision. No grounds of appeal was given.
9. The Applicant has failed to lodge her skeleton argument in accordance with the directions given by the Registrar of Civil Appeals on 12 July 2022. Accordingly, the Applicant is deemed to have waived her right to have an oral hearing of the appeal and elected to have her appeal disposed of on paper.
DISCUSSION
10. The court’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, 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, at §14(6)).
11. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 13 June 2022, and has failed to raise any viable ground of appeal against the Order.
12. The Applicant’s appeal has no merits and is dismissed, with no order as to costs.
(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.