CACV 92/2023, [2023] HKCA 804
On appeal from [2023] HKCFI 608
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 92 OF 2023
(ON APPEAL FROM HCAL NO 743 OF 2019)
________________________
BETWEEN |
| | Komala Dewi Bt Tarnipan Samiri | 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 Lisa Wong J in Court |
| Date of Hearing: | 27 June 2023 |
| Date of Judgment: | 5 July 2023 |
________________
J U D G M E N T
________________
Hon Kwan VP (giving the Judgment of the Court):
1. On 14 March 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek 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 24 March 2023.
2. The applicant is a national of Indonesia. She is 34 years old. She entered Hong Kong as a foreign domestic helper on 30 April 2012. Her employment was prematurely terminated on 19 March 2016 and she has overstayed since 3 April 2016. On 8 April 2016 she surrendered to the Immigration Department and lodged a non-refoulement claim on 12 April 2017 on the basis that, if refouled, she would be harmed or killed by her husband, Arip Pujianto (“Arip”), because she failed to give him money.
The decisions of the Director
3. By a Notice of Decision dated 6 February 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].
4. The Director found that the applicant’s level of risk of being harmed or killed by her husband upon her return to Indonesia would be low, given the absence or low intensity and frequency of past ill-treatment. There was no information showing that her husband would be as influential as she had claimed, as he did not belong to or associate with any organizations or groups in Indonesia. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates any 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 23 November 2018. The Board found multiple and significant aspects of her evidence which cast doubt on the truth of central aspects of her claims, in particular the alleged violent relationship with Arip, and whether creditors have placed pressure on her to repay loans allegedly taken out by Arip. The Board did not accept the applicant’s claim that she would be at risk of harm inflicted by Arip or his creditors should she return to Indonesia. The Board therefore rejected the appeal on 21 February 2019.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 18 March 2019 to seek leave to apply for judicial review against the decision of the Board. She stated in her affirmation if she returns to Indonesia her husband will kill her as she could not give him money to pay the bank and debt collector.
The judge’s decision
7. DHCJ K W Lung dealt with the application on paper as the applicant did not request an oral hearing.
8. The judge considered that the applicant’s evidence was incredible, and she did not have any valid grounds to challenge the Board’s decision. He held that there is no error of law or procedural unfairness in the Board’s decision. As the applicant failed to show any realistic prospect of success in her intended judicial review, the judge dismissed the leave application on 14 March 2023.
Grounds of appeal
9. In the Notice of Appeal and her supporting affirmation filed on 24 March 2023, the applicant stated the following as her grounds of appeal:
(1) Her life would be in danger if she returns to Indonesia; and
(2) She has children in Hong Kong and bank debt in Indonesia that she cannot repay.
10. In her written submissions lodged on 30 May 2023, the applicant further contended as follows:
(1) It was procedurally unfair that she was not provided with proper legal and language assistance, and the determination of the appeal/petition was never read to her in her own language;
(2) There was discrimination on part of the authorities towards non-refoulement claimants in that the only aim is to dispose of such cases quickly.
Legal Principles
11. 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.
12. 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 scrutinizing the decision of the Board due to the seriousness of the 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.
13. 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
14. The applicant’s grounds and submissions in this appeal are merely bare assertions without evidence in support. The Director, the Board and the judge have all given detailed reasons for rejecting her 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.
15. As to the applicant’s complaint that she did not receive proper legal and language assistance, the Court of Appeal has held that the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) HKCFAR 187 do not prescribe that claimants in non-refoulement cases must have an absolute right to free legal representation at all stages of the proceedings (Re Zunariyah[2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; Re Lopchan Subash[2018] HKCA 37; and Re Zafar Muazam[2018] HKCA 176).
16. The applicant was legally represented when she presented her case to the Director. In her appeal hearing before the Board, she was provided an interpreter and was able to testify, answer questions raised by the Adjudicator and make representations. In the circumstances, there is no unfairness arising from the lack of legal representation in her appeal before the Board.
17. More importantly, the applicant did not adduce any evidence to refute the Board’s findings. She also failed to show that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. There was also no evidence to substantiate her claim that there was any procedural unfairness.
18. There is no reasonable prospect of success in her intended judicial review. The judge is right in refusing to grant leave to apply for judicial review. We therefore dismiss the applicant’s appeal.
(Susan Kwan)
Vice President | (Lisa Wong)
Judge of the Court
of First Instance |
The Applicant (Appellant), acting in person
[1] [2023] HKCFI 608
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] 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)
[4] This refers to 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).
[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 and its 1967 Protocol.