SITI MULDIYATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 113/2022, [2023] HKCA 870

On Appeal From [2022] HKCFI 701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 113 OF 2022

(ON APPEAL FROM HCAL NO 235 OF 2019)

__________________

__________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  On 17 March 2022, DHCJ K.W. Lung (“the Judge”) refused 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 (“the Board”) dated 7 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 29 May 2018 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 12 April 2022, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, she lodged a letter with the Court indicating her consent to have this appeal disposed of on paper without an oral hearing. 

3.  Pursuant to the directions given by the Registrar of Civil Appeals on 12 April 2022, the applicant should lodge her written submissions on or before 26 April 2022.  However, she failed to do so.  The Registrar further directed that in case the applicant fails to lodge her written submissions as directed, she will be deemed to have abandoned her right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

4.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

5.  The applicant is a national of Indonesia.  She last entered Hong Kong on 31 March 2011 as a foreign domestic helper.  Her employment contract was terminated prematurely on 3 June 2011.  However, she did not depart within the time limit and had overstayed.  On 27 June 2011, she was arrested by the police.  On 14 July 2011, she lodged a torture claim under Part VIIC of the Immigration Ordinance (Cap. 115) which was rejected by the Director on 6 March 2013.  The applicant lodged an appeal on 15 March 2013 against the Director’s decision, which was dismissed by the Board on 18 April 2013.

6.  On 14 May 2013, the applicant lodged a non-refoulement claim alleging that if refouled, she would be harmed or killed by (i) her husband’s creditors for default on a loan and (ii) villagers in her home village of Sawangan as she had converted from Islam to Christianity.  The factual background of this case was succinctly summarized by the Judge in [5] of the Form CALL-1 ([2022] HKCFI 701).

7.  By a Notice of Decision dated 29 May 2018, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], and the persecution risk[3].

8.  The applicant appealed the Director’s decision to the Board.  She attended an oral hearing on 1 November 2018 and by its decision dated 7 January 2019, the Board dismissed her appeal.  For the reasons set out in [37] – [62] of its decision, the Board found that the applicant had failed to establish a real risk pertinent to any of the applicable grounds.  Regarding her claimed fear of her deceased husband’s creditors, it was her own evidence that she and her family members have not been physically harmed, and that she had only been warned by the creditors that she would be sued for the debts upon her return to Indonesia, as she has to be responsible for debts incurred by her deceased husband according to Indonesian law.  The Board found that the creditors have legal rights to pursue her for those debts and there is no evidence that the applicant would be deprived of a fair trial.  If she is found liable, she would only face lawful sanctions, which should not be regarded as severe ill-treatment or serious harm. 

9.  Regarding her claimed fear of humiliation and discrimination practised by her fellow villagers due to her conversion, the Board found that despite reported cases of anti-Christian violence, and an incident of the bombing of a Christian church in March 2018 as alleged by the applicant, she had never encountered any actual violence or threats of bombing.  Relevant country of origin information (“COI”) showed that freedom of religion is guaranteed by the Constitution of the country and there is reasonable state protection.  Further, the openness of the country and the lapse of time since the applicant left her country in 2002 would dilute, if not remove, any animosity of the villagers towards the applicant upon her return to Indonesia.  In any event, internal relocation is a reasonable and viable option to avoid any possible risk.  For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.

Decision of the court below

10.  On 24 January 2019, the applicant filed her Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  In her affirmation in support, she enclosed the Director’s decision and said that she was not satisfied with it. 

11.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  By the decision dated 17 March 2022, the Judge refused to grant leave to the applicant to apply for judicial review.  The reasons for the refusal were set out at [12] – [17] of the Form CALL-1 as follows:

“12. 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).

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

14. 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.”

15. There is no valid reason from the applicant to challenge the Board’s Decision.

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

17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Appeal to this Court

12.  On 12 April 2022, the applicant filed her Notice of Appeal and she advanced the following grounds:

“The High Court did not find any error of proceeding. I will show some error. I did not get justice.”

Legal principles

13.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and on appeal, which operates as a re-hearing, the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

14.  The applicant did not in her Notice of Appeal provide any proper ground of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision. 

15.  It is clear from the Board’s decision that the applicant failed to substantiate her non-refoulement claim on all applicable grounds.  It was the applicant’s own evidence that she was never harmed by the creditors and she was only warned that she would be sued for the debts. There was no evidence that she would not have a fair trial, and what she would face is a lawful sanction which cannot be regarded as severe ill-treatment or serious harm.  As to the discrimination by her fellow villagers due to her conversion, there is no evidence of actual threats or violence.  Relevant COI suggested reasonable state protection is available and internal relocation is a viable option to avoid any possible harm.  The Board was entitled to make the findings as it did and the judge was right to find no valid public law ground to intervene.

16.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

17.  For the above reasons, this appeal is dismissed.