ELLI LUDFIATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 173/2024, [2024] HKCA 1027

On Appeal From [2024] HKCFI 1192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 173 OF 2024

(ON APPEAL FROM HCAL NO 1606 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”)  on 30 April 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 6 June 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 1 March 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia born in 1978.  She first arrived in Hong Kong to work as a foreign domestic helper in 2011.  The applicant last entered Hong Kong to work as a foreign domestic helper on 8 January 2014, but her employment contract was prematurely terminated on 8 December 2014.  She had overstayed since 23 December 2014 and surrendered to the Immigration Department on 14 December 2016.  Her claim for non-refoulement protection was made by way of written representation dated 2 March 2017 and her formal non-refoulement claim form was dated 24 January 2018.  The applicant’s claim was made on the basis that if she returned to Indonesia, her ex-husband’s parents and a loan shark, named Novi, would harm or kill her due to her reconversion from Islam to Hinduism and her inability to pay a loan respectively.  The factual background of the applicant’s claim was set out at [27] to [43] of the Board’s decision.

3.  By notice of decision dated 1 March 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 24 October 2018, during which the applicant gave evidence and answered questions from the Board.  The Board did not accept the applicant’s claim to be truthful or credible.  It did not accept that the applicant or her parents (as established traders)  would not be familiar with more competitive money lenders and money lending practices in the area other than Novi, that the applicant could secure the debt before going to Hong Kong in the circumstances she described, that Novi was part of a group notorious for violent and reckless criminal behaviour in Turen as claimed, or that the applicant’s reconversion to Hinduism would be of any interest to her former parents-in-law as she was divorced from her ex-husband more than 12 years ago.  Perhaps, the religion of the grandchildren might be of more interest to the parents-in-law.

5.  In the event that there might be some level of risk, however remote, the Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Indonesia.  It found there was in fact no real risk of harm if the applicant returned to Indonesia, because it was unlikely the applicant could have borrowed so much money from a criminal gangster instead of a reputable lender and the former parents-in-law were unlikely to harm the applicant or her children as she was divorced for over 12 years, and internal relocation to Jakarta, Surabaya, Bandung, Semarang or Sumatra was viable.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Indonesia.  By its written decision dated 6 June 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 13 June 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, she simply repeated the basis of her claim for non-refoulement protection and annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 30 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [14] to [17] of the Form CALL-1 as follows:

“ 14. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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 court will scrutinize 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[5].

15. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she only repeated the essence of her case and reiterated her fears and risk of harm. She had been invited by the Court via its letter dated 15 November 2023 to advise the Court of his first language and to file submissions. She did not respond.

16. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk of harm from her ex-husband’s parents or the moneylender, if returned to Indonesia. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

   17.   Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the 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’s evidence incredible and rejected her case as inherently improbable.  She had therefore failed to establish the factual basis in support of her claim for protection.  As she bears the burden of proof, albeit on a low standard, this finding is necessarily fatal.  It was on that basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.  For the above reasons, the application for leave to apply for judicial review is refused.”

Appeal to this Court

9.  On 3 May 2024, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that the Judge did not consider that the Board gave an incorrect decision and that such decision was full of errors. The applicant did not provide any particulars as to what those errors were.

10.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.  The applicant has lodged written submissions in which she stated that the Board made many errors, that the Judge did not look at her argument, that there was no oral hearing, that the Judge did not consider any of the points she had raised, that there was no justice in the Judge’s decision, that the Judge’s decision was wrong, and that she could find the Board’s error but the Judge could not.  She did not provide particulars on the alleged errors in the decisions of the Board and of the Judge respectively. 

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s claims were not credible and internal relocation was a viable option in any event.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors.  As to the arguments raised in the applicant’s written submissions, it consists of mere general and bald assertions regarding the decision of the Board without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.  The applicant’s appeal is accordingly dismissed.

16.  On 9 September 2024, the court was notified by the Director that the applicant had been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he use his best endeavours to forward them to the applicant