SITI-KHOMARIYAH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 255/2022

[2022] HKCA 1567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 255 OF 2022

(ON APPEAL FROM HCAL NO 58 OF 2019)

________________________

_____________________

_______________

J U D G M E N T

_______________

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

1.  On 28 June 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 17 June 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 3 December 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 April 2018.

BACKGROUND

2.  The Applicant is a national of Indonesia. She last entered Hong Kong on 31 August 2014 to work as foreign domestic helper, and was permitted to stay until the expiration of her employment contract on 29 August 2016, or within 14 days of its termination, whichever was the earlier. The Applicant’s employment contract was prematurely terminated on 12 April 2015. She did not depart from Hong Kong upon the expiry of her limit of stay. On 29 September 2015, she surrendered herself to the Immigration Department, and raised a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband for failing to remit money to him in Indonesia for repayment of his debts. Details of the Applicant’s claim were summarised by the Judge at §§1-4 of the CALL-1 Form ([2022] HKCFI 1663).

3.  By a Notice of Decision dated 18 April 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s decision to the Board. On 3 December 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board accepted the Applicant’s claim of fear of threats from her husband over her failure to remit money to him in Indonesia, but found in the absence of any official involvement that it was a private domestic dispute between husband and wife that state/police protection and support and assistance from various government bodies and organizations would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.  On 8 January 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

6.  On 17 June 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[9] On 8 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, in which she just repeated her claim as before without putting forth any proper ground for seeking relief, while in her supporting affirmation of the same date she stated that the decisions were unreasonable in that they failed to consider all the matters raised in her claim, again without providing any details or particulars or elaboration as to how they did so, but later in her written submissions dated 5 January 2022, the Applicant put forward the following grounds for her intended challenge of those decisions:

(1) That the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claim;

(2) That the Director failed to recognize the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as the politicians which was the direct result of misconduct of the police officials that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Director had listed relevant COI which supported the Applicant’s aversions that the police in Indonesia would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void; and

(4) That the Director failed to attain the high standard of fairness required by the Wednesbury test in failing to accept the argument that corruption and incompetency of the administration in Indonesia is still a very serious problem as various human rights organizations have compiled reports which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law.

[10] While the Applicant appears to have directed all these complaints only against the Director, given the fact the Director’s decision has already been superseded by the Board’s as the final decision on her non-refoulement claim, and hence is no longer susceptible to judicial review: see Re Moshsin Ali [2018] HKCA 549, I shall accordingly treat those complaints instead as the Applicant’s intended challenge of the Board’s decision.

[11] However, they all appear to me just some vague and bare assertions of the Applicant containing several key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board had erred in its decision, or in what way would state acquiescence or torture be relevant to her claim when the factual basis even of her own case at the highest was some private domestic disputes with her husband without any official involvement and that there is never any evidence or suggestion that she has ever been tortured by the police or authorities, or what relevant COI did the Board fail to consider or take into account in its determination of her non-refoulement claim. None of these complaints are materially or factually relevant to the factual basis of the Applicant’s claim. As such I do not find any of them reasonably arguable for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, nor do I find any merits in her intended application.

…

[13] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[14] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

THIS APPEAL

7.  In her Notice of Appeal dated 28 June 2022, the Applicant put forward the following grounds of appeal:

“(1) The decisions are unlawful.

(2) The Decisions failed to take into account many things and [issues].

(3) I have life’s danger in my home country Indonesia, so why, [I] can’t go back to my Home Country. Please help me to save my life.”

8.  In her affirmation filed on 28 June 2022, she basically repeated what she had stated in the Notice of Appeal.

9.  The Applicant failed to lodge skeleton argument in accordance with the directions given by the Registrar of Civil Appeals on 11 August 2022. Accordingly, she is deemed to have waived her right to have an oral hearing of the appeal and elected to have her appeal disposed of on paper.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

11.  Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.  The Applicant’s complaints in the Notice of Appeal are mere general assertions without particulars, and cannot constitute valid grounds of appeal.

13.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 17 June 2022, and has failed to raise any viable ground of appeal against the Order.

14.  The Applicant’s appeal has no merits, and is dismissed.