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CACV 518/2024, [2026] HKCA 1378
On appeal from [2024] HKCFI 3008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 518 OF 2024
(ON APPEAL FROM HCAL 2110 OF 2019)
________________________
________________________
| Before: |
Hon Barma JA and Lisa Wong J in Court |
| Date of Hearing: |
7 May 2025 |
| Date of Judgment: |
7 August 2026 |
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JUDGMENT
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal by the applicant against the order made by Deputy High Court Judge K W Lung (“Judge”) on 19 November 2024 (“Judge’s Decision”) refusing her leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board/Non-refoulement Petition Office (“Board”) given on 12 July 2019 (“Board’s Decision”)[1], which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 10 October 2018 (“Director’s Decision”).
Bases and allegations in support of NRF Claim
2. The bases of the NRF Claim made by the applicant, a national of Indonesia, are fears of being ill-treated or killed by (1) a loan shark due to her failure to repay a debt; and (2) her relatives by reason of her having borne a child out of wedlock.
3. The circumstances giving rise to such alleged fears have been set out in detail in paragraph 7 of the Director’s Decision, and paragraphs 3 to 11 of the Board’s Decision, and in gist in paragraphs 3 and 4 of the Judge’s Decision embodied in the Form CALL-1 dated 19 November 2024, [2024] HKCFI 3008 (“Form CALL-1”).
4. Briefly:
(1) The applicant was born in Cirebon, Indonesia, as a Muslim. She was once married to a man named Kamsia in 1999 when she was 16 years old. They divorced in 2002, having had one daughter together. The applicant’s parents (until their passing away in 2018) had been her daughter’s primary carer, when she left to find employment in Malaysia in 2005.
(2) In 2011, she borrowed money from the loan shark prior to her employment as a domestic worker in Hong Kong. The money was used to pay the agent who arranged her employment.
(3) The applicant’s brother informed her that the loan shark had repeatedly demanded him to repay the applicant’s loan for her. Meanwhile, in 2014, the applicant met a Pakistani boyfriend in Hong Kong, for whom she bore a son out of wedlock.
(4) The applicant’s case is that should she return to Indonesia, she would face dangers and physical harm from the loan shark and her relatives.
Overstaying in Hong Kong and lodgment of NRF Claim
5. The record shows that the applicant was last granted landing in Hong Kong with a limitation of stay until 31 March 2014. However, she did not depart as required and had overstayed since 1 April 2014. On 16 January 2015, the applicant surrendered herself to the Immigration Department.
6. On 21 January 2015, the applicant lodged a NRF Claim by written representations. Her claim was assessed under the Unified Screening Mechanism, which was for all applicable grounds for non-refoulement protection including torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk.[5]
Director’s Decision
7. The Director assessed the applicant’s NRF Claim based on the information she had provided in her Non-refoulement Claim Form dated 6 September 2018 (“NCF”) (submitted through the Duty Lawyer Service which was then advising and representing the applicant) and at the screening interview by the Director’s representative(s) on 26 September 2018.
8. The Director found the NRF Claim unsubstantiated under all 4 applicable grounds. The Director found, inter alia, that (1) the risk of harm against the applicant was low should she return to Indonesia, as the past ill-treatment sustained by her had been of a low intensity and frequency; (2) on the facts and evidence, the loan shark and the applicant’s brother did not have any real intention to kill or harm her; (3) suitable options of internal relocation and adequate state protection were available to the applicant.
Appeal to Board and Board’s Decision
9. The applicant appealed against the Director’s Decision to the Board.
10. The Board conducted a rehearing of the NRF Claim on 3 June 2019, at which the applicant testified before, and answered questions by, the Board.
11. The Board dismissed the appeal on all 4 grounds for non-refoulement protection for the following reasons.
12. The Board found the applicant’s basis on which her claim was based to be incredible by reason of the inconsistencies in her evidence. Of significance, the Board considered and took note of the applicant’s admission during the hearing that the loan shark did not in fact threaten to harm her (see Board’s Decision at paragraph 33). In any event, as had been concluded by the Director, the Board agreed that suitable options of internal relocation and adequate state protection were available to the applicant.
Application for leave for judicial review and Judge’s Decision
13. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued in HCAL 2110/2019 on 24 July 2019 and the supporting affirmation filed on the same day, the applicant sought leave to apply for judicial review of the Board’s Decision[6].
14. The Form 86 failed to set out proposed grounds of review, save and except the applicant’s repetition of the factual background to her claim, as well as the legal provisions and trite principles relevant to her claim.
15. Apart from exhibiting a copy of the Board’s Decision, the applicant merely stated in her supporting affirmation that the Board and/or the Director failed “to consider all the matters raised in [her] claim” and “to take into account many things and issues”.
16. The leave application was fixed to be heard on 16 October 2024, but the applicant was absent without explanation. The Judge accordingly dealt with the leave application on paper.
17. Having considered the papers lodged with the court, the Judge refused to grant leave to apply for judicial review of the Board’s Decision for the reasons set out at [13] – [18] of the Form CALL-1:
“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).
14. The Court will bear in mind that the Board’s Decisions 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. Those grounds under paragraph 12 are the bare and general assertions and the general principles of the law without any evidence in support. They are not valid to challenge the Board’s Decision. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
‘20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].’
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
Appeal to Court of Appeal - grounds of appeal and submission
18. By the notice of appeal filed herein on 2 December 2024, the applicant appealed against the refusal of leave for judicial review, without stating any grounds of appeal, properly so called. The applicant however, in the notice of appeal, merely claimed that the “decisions are unlawful”, that such “decisions failed to take into account many things and issues”, and that her life would be in danger should she return to Indonesia.
19. By the written submission lodged on 8 April 2025, the applicant merely repeated her dissatisfaction against, and the apparent errors contained in, the Director’s and the Board’s Decisions, without pointing to any errors by the Judge.
20. On the date of the hearing on 7 May 2025, the applicant failed to appear.
Discussion
Court of First Instance’s role in judicial review in non-refoulement claim
21. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim
22. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst at [14(2) & (4)].
Appeal has no merit
23. The applicant’s so-called proposed grounds for judicial reviews were but general and bare assertions without any supporting particulars or evidence. The applicant has wholly failed to articulate any matters which could properly give rise to a ground based on error of law, procedural unfairness or irrationality on the part of the Board. The application for leave to apply for judicial review was bound to fail. The Judge did not err in refusing leave.
24. We could not discern from either the applicant’s notice of appeal or the written submissions any matters which could form the bases upon which the Judge’s Decision should be disturbed. The applicant has failed to articulate any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nothing she has raised merits serious consideration as a potential basis to interfere with the Judge’s Decision.
25. In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
Disposition
26. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
| (Aarif Barma) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the Court of |
| |
First Instance |
The applicant was not represented and did not appear
[1] As well as, erroneously, the Director’s Decision itself.
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the HKBORO.
[6] And also erroneously, the Director’s Decision.
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