CACV 256/2023, [2024] HKCA 7
On Appeal From [2023] HKCFI 1964
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 256 OF 2023
(ON APPEAL FROM HCAL NO 1014 OF 2019)
_______________
BETWEEN |
| | DWI INDRA SARI | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
_______________
| Before: | Hon Au JA and Ng J in Court |
| Date of Hearing: | 5 December 2023 |
| Date of Judgment: | 12 January 2024 |
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J U D G M E N T
________________
Hon Au JA (giving the Judgment of the court):
1. This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 3 August 2022, by which the Deputy Judge refused the applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 1964).
2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 28 March 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 January 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).
Background
3. The applicant is a national of Indonesia. She last arrived in Hong Kong on 21 September 2012 and was permitted to remain for employment as a domestic helper until 21 September 2014 or two weeks after termination of contract, whichever was earlier. Her employment contract was terminated on 28 September 2013 and she overstayed since 13 October 2013. On 10 April 2015, she surrendered to the Immigration Department for having overstayed. By a written representation dated 12 October 2015, she raised a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor due to a loan dispute. Factual details of the applicant’s claim were concisely summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.
4. By the Director’s Decision, the Director rejected the applicant’s non‑refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that her non‑refoulement claim was not substantiated.
5. The applicant then appealed against the Director’s Decision to the Board on 7 February 2018. The applicant attended two hearings respectively on 19 September 2018 and 19 December 2018. In essence, the Board found that the applicant’s claim lacked credibility. The Board observed that there was a lack of documentation in support of her claim and the Board casted doubt on her ability to take out a huge loan of USD5,400 as alleged given her low salary and lack of assets. The Board also noted that although she had ample opportunities to pay off her loan when she was working as a domestic helper, she chose not to do so. Although the Board noted that there was no need to consider internal relocation, it went on to observe that the applicant could also easily relocate to other areas in her home country. Accordingly, the Board found that her non‑refoulement claim failed on all applicable grounds and dismissed her appeal.
The Leave Decision
6. On 15 April 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision.[5] In her Form 86, the applicant did not state any ground of review. In her supporting affirmation, she only stated that because of her unpaid debts, her creditor would harm or kill her and that her creditor would find her in Indonesia. She asserted that she only felt safe when living in Hong Kong. As she did not request for an oral hearing, her application was considered by the Deputy Judge on paper.
7. By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [14] ‑ [20] of the Leave Decision:
“14. 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, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).
15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
16. 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.’
17. The Board, for the reasons given above, rejected her evidence as incredible and found that internal relocation was an option open to her. The grounds stated in paragraph 13, supra are not valid to challenge the Board’s Decision.
18. 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.
19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
20. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
The Appeal
8. On 14 August 2023, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision. In her Notice of Appeal, she stated:
“I would like to reject and review the decision made by the court. They disregard my dangerous situation.” (sic)
9. Pursuant to the directions made by the Registrar of Civil Appeals on 12 October 2023 and the directions of this court on 19 October 2023, the applicant lodged her written submissions on 7 November 2023. In those submissions, she reiterated the factual basis of her non‑refoulement claim and asserted that if refouled her life would still be at risk because the loanshark had been harassing and threatening people and that relocation would be impossible. She further asserted that she would be in grave danger should she be returned to Indonesia as the loanshark frequented her home and, when she was there, he almost raped her.
10. We heard the appeal on 5 December 2023. An Indonesian interpreter was present to provide language assistance. During the hearing, the applicant confirmed that she had nothing to add to her written materials.
Discussion
11. The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].
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. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.
13. At the outset, all of the applicant’s allegations are vague, bare contentions without any evidence or document in support. Although she disagreed with the Leave Decision, nowhere in her Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision. Accordingly, her submissions are plainly not proper grounds of appeal. On this basis alone, her appeal must fail.
14. Further, general assertions of her fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib[2020] HKCA 408 at [28]. More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: Re Md Shohel Sheak[2018] HKCA 714 at [13] and Re Limbu Birkhaman[2019] HKCA 50 at [11].
15. In any event, in the present case, based on the evaluation of evidence before it, the Board found that the applicant failed to demonstrate that she would be at risk of being subjected to ill-treatment if refouled. As explained above, the evaluation and assessment of evidence are within the province of the Board, and the court will not interfere with its evaluation and assessment unless there are public law grounds to do so. The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law or procedural unfairness or reasonably arguable grounds to challenge the findings of the Board. In the premises, we see no basis to interfere with the Leave Decision.
16. For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.
(Thomas Au)
Justice of Appeal | (Peter Ng)
Judge of the Court of
First Instance |
The applicant appeared 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 violation of the right to 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 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.
[5] In her Form 86, the applicant erroneously stated the date of Board’s Decision as 7 February 2018, when it should have been 28 March 2019.