RE SITI RUMANI

CACV 516 /2024, [2025] HKCA 62

On appeal from [2024] HKCFI 3185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 516 OF 2024

(ON APPEAL FROM HCAL NO. 1944 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 18 November 2024[1] dismissing her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal against the decision of the Director of Immigration (“the Director”)  and rejecting her non-refoulement protection claim.

2.  The applicant has consented to the appeal being determined by the Court of Appeal on the papers. 

3.  Despite directions given by the Registrar of Civil Appeals, the applicant has not lodged any written submission to support her appeal.  

The applicant’s claim

4.  The applicant is an Indonesian national aged 44.  She last entered Hong Kong on 15 November 2015 to work as a foreign domestic helper.  After her employment contract was terminated, she overstayed and was arrested on 20 February 2017.  She subsequently raised a non-refoulement claim based on fear of being harmed or killed by a loan shark due to an outstanding loan borrowed her husband.  Her claim was set out in details in the Director’s decision at [6] and succinctly set out by the Judge in [5] to [9] of the Form CALL-1.  It is not necessary to repeat it.  

The decisions of the Director and the Board

5.  By a Notice of Decision dated 3 April 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 22 January 2019.  By a decision given on 13 June 2019, the Board dismissed the appeal.  In gist, the Board found the applicant’s case internally inconsistent and doubted the credibility and reliability of her evidence.  The Board rejected the claim it in its entirety.  The Board concluded that the applicant failed to establish the factual basis to support her claims to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

7.  The applicant filed a Form 86 and an affirmation on 10 July 2019 to seek leave to apply for judicial review against the decision of the Board.  The applicant did not provide any grounds for seeking relief.  She only stated in her supporting affirmation that her life was in danger.

8.  The Judge heard the leave application at a hearing held on 5 November 2024.  By a Form CALL-1 dated 18 November 2024, he dismissed the application on the basis that the intended judicial review had no prospect of success.  His reasons were encapsulated in [21] as follows:

“21. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible and rejected almost the entirety of her case. This is a finding fact solely within the realm of the Board. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding is the result of error of law or procedural unfairness or the Decision is irrational. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law in the Decision or procedural unfairness in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving her fears and risks. The Decision is utterly without fault. The Applicant’s grounds are not reasonably arguable. The proposed judicial review has no realistic prospect of success.”

The appeal

9.  By a notice of appeal filed on 29 November 2024, the applicant sought to appeal the Judge’s decision to this court.  Other than stating that she would like to reject and review the decision of the Board and the Judge who had disregarded her dangerous situation, the applicant has provided no grounds of appeal.  

Our reasons for decision

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.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), who are the 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.  Further, an appeal to the Court of Appeal is not an avenue for the applicant to re-argue the case.  The Court of Appeal will not interfere with the first instance decision unless it is shown that the first instance judge has erred.

11.  Despite indicating that she disagrees with the Judge’s decision, the applicant has not pointed to any error in the Judge’s decision.  Nor has the applicant identified any error in the Board’s assessment of her evidence and the finding of facts, or any irrationality or procedural irregularity in the Board’s decision.  In light of the Board’s rejection of her evidence, the applicant’s assertion that she will be in danger if she returns to her home country has no supporting foundation.  The Judge is plainly correct to dismiss the application for leave to apply for judicial review.  There is no proper basis for this Court to interfere with the Judge’s decision.

12.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.