RE WANGSIH

CACV 577/2021

[2022] HKCA 433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 577 OF 2021

(ON APPEAL FROM HCAL 2685/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”)  given on 16 December 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against (i)  the decision of the Director of Immigration (“the Director”)  dated 26 February 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”); and (ii)  the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 19 November 2018 (“the Board’s Decision”)  dismissing the applicant’s appeal against the Director’s Decision.

Background

2.  The applicant is a national of Indonesia.  She arrived in Hong Kong on 27 June 2013 as a domestic helper.  The applicant overstayed and surrendered herself to the Immigration Department on 27 January 2015.  Thereafter, she lodged a non-refoulement claim on 4 May 2015.   

3.  The applicant’s claim was based on a fear of being harmed or killed by her maternal uncle if refouled, because of non repayment of a loan incurred by her parents.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 26 February 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed to the Board.  After a hearing on 10 September 2018, the Board dismissed the appeal on 19 November 2018 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The inconsistencies between the applicant’s oral and written evidence led the Board to conclude that her claims were not credible.  The Board found that there was no real risk of the applicant being harmed if she were to return to Indonesia.

The Judge’s decision

6.  The applicant filed a Form 86 on 27 November 2018 seeking to judicially review both the Director’s and the Board’s Decisions and did not set out any grounds for judicial review.

7.  In the applicant’s supporting affirmation, she simply exhibited the hearing bundle and the Board’s Decision.

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:

“13.  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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.’

16.  The applicant has not been able to set out any valid ground to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s findings.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 21 December 2021, the applicant stated:

“The High Court did not find any error. I will show some error.”

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

11.  The applicant lodged written submissions on 4 January 2022, in which she repeated the basis of her fear of returning to Indonesia, and stated that “the High Court did not pay any attention”.

Discussion

12.  The applicant has in her Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

13.  In her application in the court below, the applicant provided no particulars as to any respects in which the Director or the Board were unreasonable or unfair in reaching their Decisions, or how such Decisions could be said to be Wednesbury unreasonable.

14.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

15.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.