Case Detail

GIYARSIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2023] HKCA 711-EN-2023-06-08

GIYARSIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CACV 392/2022, [2023] HKCA 711

On appeal from [2022] HKCFI 2877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 392 OF 2022

(ON APPEAL FROM HCAL NO 1059 OF 2019)

________________________

BETWEEN
	Giyarsih	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Fung J in Court

Date of Written Submission:	8 February 2023
Date of Judgment:	8 June 2023

_______________

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 handed down on 13 January 2023 ([2023] HKCA 37). The Court of Appeal rejected the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 20 September 2022 ([2022] HKCFI 2877) refusing to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged written submissions on 8 February 2023. Having considered the written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Indonesia. She entered Hong Kong on 1 June 2012 as a foreign domestic helper. On 8 August 2012, her employment contract was terminated prematurely after her criminal conviction. She was referred to the Immigration Department on 15 September 2012. On 26 October 2012, she raised a torture claim which was rejected by the Director of Immigration (“the Director”) on 27 May 2013 and the subsequent appeal was dismissed by the Board on 24 September 2013. She lodged a non-refoulement claim on 25 July 2013 on the basis that, if refouled, she would be harmed or killed by her creditor.

4. In the Notice of Motion filed on 31 January 2023, the applicant stated the following grounds:

(1) The court failed to consider the fact or grounds she had submitted before the hearing that the Board and the Director failed to provide sufficient opportunity for establishing her claim, and has poor observation into country of original condition that the authority of her country would not be able to protect her from her enemies;
(2) The judge did not properly consider why the applicant would not face any risk upon refoulement. Her life is still at risk from her enemies who will harm her and the threat is continuing against her.

5. In the written submissions, she further submitted that:

(1)  The Board and the Director failed to take into account and/or give proper weight to relevant considerations and materials and hence their decisions are illegal. In particular, the decision makers failed to give due regard to the fact that:
(a)  the judges’ support for the Board’s decision is improper as the Board did not follow high standard of fairness for providing opportunity for the applicant’s claim and did not inquire about the fear the applicant had raised in her claim as well as the country of origin conditions information;
(b)  her claim is based on true story. Decision maker did not observe her fear well. Even assuming her risk may be private and arose out of personal dispute, her life would be too risky if she returns to her country.
(2)  In the judgment of her appeal, the judges stated that there is no merit in her claim. Her claim is not a private and personal matter but the decision maker did not observe her fear properly.
(3)  In the judgment of her judicial review application and her appeal, the judges support the Board’s decision but they did not focus on her fear that her life would be in danger.

6. 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.

7. The Court of Appeal has already duly considered the applicant’s grounds of appeal and given detailed reasons for the dismissal of the appeal in the judgment dated 13 January 2023. In the present application, the applicant failed to show that the Court of Appeal was wrong in its decision. In particular, the Court of Appeal held that it is unnecessary for the Board to further consider the country of origin information when the Board had decided that the applicant failed to substantiate her claim of risk of harm upon refoulement. The applicant failed to adduce any evidence to refute the Board’s findings. She also 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).

8. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 31 January 2023.

(Susan Kwan)
Vice President

(Barnabas Fung)
Judge of the Court
of First Instance

The Applicant (Appellant), acting in person

CACV 392/2022

[2023] HKCA 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 392 OF 2022

(ON APPEAL FROM HCAL NO 1059 OF 2019)

________________________

BETWEEN
	Giyarsih	Applicant
	and
	Torture Claims Appeal Board / Non‑refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Fung J in Court

Date of Hearing: 4 January 2023

Date of Judgment: 13 January 2023

________________________

J U D G M E N T

________________________

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

1. On 20 September 2022, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 27 September 2022.

2. The applicant is a national of Indonesia. She entered Hong Kong on 1 June 2012 as a foreign domestic helper. On 8 August 2012, her employment contract was terminated prematurely after her criminal conviction. She was referred to the Immigration Department on 15 September 2012. On 26 October 2012, she raised a torture claim which was rejected by the Director of Immigration (“the Director”) on 27 May 2013 and the subsequent appeal was dismissed by the Board on 24 September 2013. She lodged a non-refoulement claim on 25 July 2013 on the basis that, if refouled, she would be harmed or killed by her creditor.

The decision of the Director

3. As the applicant’s torture claim had already been rejected, her non-refoulement claim was assessed under the unified screening mechanism on BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. By a Notice of Decision dated 9 July 2018, the Director rejected the applicant’s claim.

4. Taking into account the absence or low intensity and frequency of past ill-treatment from the creditor, the Director assessed the level of future risk of harm is low and the alleged ill-treatment has not attained the requisite minimum level of severity for non-refoulement protection. The Director also considered that the availability of state protection and internal relocation alternatives in Indonesia would further lower or negate the perceived risk.

The decision of the Board

5. The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 15 January 2019. In view of the inconsistencies in the applicant’s claim and her assertions that the creditor had never behaved violently or in a threatening manner towards her or any of her family members, the Board did not accept the applicant’s claim she would be at risk of harm by the creditor should she return to Indonesia. Therefore, the Board rejected the appeal on 29 March 2019.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 18 April 2019 to seek leave to apply for judicial review against the Board’s decision. She raised the following grounds in her affirmation:

(1)  procedural impropriety for failure to apply paragraph 2 of the UN committee against Torture General Comment No. 2;
(2)  failure to conduct sufficient inquiry into the relevant country of origin conditions;
(3)  failure to state sufficient reasons for BOR 3 risk assessment;
(4)  error/misdirection in law for failure to take into account psychological strain and threats to her personally or threats to her directly to kill her;
(5)  procedural impropriety for failure to consider her fear properly;
(6)  no sufficient basis to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

The judge’s decision

7. DHCJ Lung considered the application on paper as the applicant did not request for an oral hearing. The judge found the applicant’s grounds are bare assertions or personal opinions without any evidence in support. He also held there is no error of law or procedural unfairness in the Board’s decision. Thus, he concluded there is no realistic prospect of success in her intended judicial review and dismissed the leave application on 20 September 2022.

Grounds of appeal

8. The applicant stated the following grounds of appeal in the Notice of Appeal filed on 27 September 2022:

(1) The judge, the Board and the Director did not properly consider her fear and refused her claim without valid grounds.
(2) The decision maker failed to make proper observation into the country of origin conditions.

9. In her written submissions, she reiterated her grounds of appeal and further submitted:

(1)  The decision makers failed to take into account the fact that the applicant would face real risk upon refoulement and that she has been placed in severe mental distress as a result.
(2)  Her claim is not a personal or private dispute. She will be in danger wherever she hides in her country.
(3)  In the judgment, there are no clear directions as to why she would not be a subject of persecution upon refoulement.

Legal Principles

10. 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.

11. 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 scrutinising 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 Country of Origin Information (“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.

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, 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.

Analysis and disposition

13. The applicant’s grounds and submissions in this appeal are just bare assertions without evidence in support. In particular, the Director, the Board and the judge have all given detailed reasons for rejecting the applicant’s claim. The Board has duly considered the applicant’s claim under all applicable grounds including the risk of persecution and decided that the applicant failed to substantiate her claim of risk of harm upon refoulement. Under these circumstances, it is not necessary for the Board to further consider the COI. The applicant did not adduce any evidence to refute the Board’s findings. She also failed to show 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.

14. The applicant’s appeal has no merits. We therefore dismiss her appeal.

(Susan Kwan)
Vice President

(Barnabas Fung)
Judge of the Court
of First Instance

The Applicant (Appellant), acting in person

[1] [2022] HKCFI 2877

[2] 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).

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of 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 and its 1967 Protocol.