ERNA DWI SUSILOWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 254/2023, [2024] HKCA 9

On Appeal From [2023] HKCFI 1988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 254 OF 2023

(ON APPEAL FROM HCAL NO 1211 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 8 August 2023, by which the Deputy Judge refused the applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 1988).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 26 April 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 January 2019 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

3.  The appeal was originally fixed to be heard on 5 December 2023. On 20 November 2023[1], the applicant wrote to this Court stating that she has been detained in Castle Peak Bay Immigration Centre since 8 November 2023 (“the Letter”). In the Letter, she has further stated that she wants to go back to her home country as soon as possible and made a request to “close [her] case of high court” as soon as possible. Accordingly, Au JA directed on 29 November 2023 that the said hearing be vacated and her appeal be disposed on paper.

4.  On the basis of the applicant’s own request in the Letter to close the case alone, we dismiss her appeal. In any event, her appeal also fails on merit, which we will explain further below.

Background

5.  The applicant is a national of Indonesia. She last arrived in Hong Kong on the strength of her Indonesian passport on 22 November 2004 and was permitted to remain for employment as domestic helper until 22 November 2006 or two weeks after the termination of her contract, whichever was earlier. Her contract was completed on 22 November 2006 but she did not depart and overstayed in Hong Kong since 23 November 2006. She surrendered to the Immigration Department on 23 March 2018. On 3 December 2018, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by Basuki as she refused to marry him and to convert her religion to Hinduism. Factual details of the applicant’s claim were concisely summarised by the Deputy Judge at [3] ‑ [4] of the Leave Decision.

6.  By the Director’s Decision, the Director rejected the applicant’s non‑refoulement claim. His decision covered all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4] and persecution risk[5]. Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

7.  The applicant then appealed against the Director’s Decision to the Board on 4 February 2019. The applicant attended the hearing before the Board on 16 April 2019. Having assessed the evidence, the Board considered that her evidence was not believable. The applicant failed to give a logical answer as to why Basuki would do so much to marry her including the payment of a huge dowry before she gave her consent, kidnapped her and got a person to carry out the ritual to convert her into Hinduism. The Board also found that the applicant’s account of the rape implausible as it was lacking in the necessary details and the applicant had failed to establish the primary facts in support of it. In any event, even if her evidence was accepted, the risk would be very low as there was a lapse of 17 years from the incident until now. The Board thus did not accept that there was a real chance that her feared risk would materialise. Further, after considering the Country of Origin information (“COI”), the Board was also of the view that state protection and internal relocation would be available to the applicant.

The Leave Decision

8.  On 6 May 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision. As summarised at [11] of the Leave Decision, the grounds advanced by the applicant were as follows:

(1)  The Board had ignored the risk of extra-judicial killings and the Board had not given her sufficient time to prepare her case.

(2)  The Board had failed to consider state acquiescence as she was tortured by the law enforcement agencies and those in the high ups of political circles.

(3)  The Board had failed to give sufficient weight to the factors against state protection in the COI, preferring evidence in favour of state protection instead.

(4)  The Indonesian government is corrupt and in competent.

(5)  The Board’s Decision had been unreasonable and unfair.

9.  As the applicant did not request for an oral hearing, the Deputy Judge considered and determined her application on paper.

10.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [12] ‑ [19] of the Leave Decision:

“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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decision 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. The Board, for the reasons given above, concluded that the applicant was a dishonest and unreliable witness.

16. As to the grounds in paragraph 11, all of the grounds are general or bare allegations without evidence in support. 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. There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

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

This Appeal

11.  On 14 August 2023, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision. In her Notice of Appeal, she stated:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.” (sic)

12.  Pursuant to the directions made by the Registrar of Civil Appeals on 12 October 2023 and the directions of this Court on 19 October 2023, the applicant lodged her written submissions on 7 November 2023. In those submissions, the applicant claimed that she was worried that she would be killed by the loan shark and that she would face grave danger. She also asserted that she would have a genuine life threat if refouled given her history of being attached by the loan shark. She further asserted that she could be dead in Indonesia and that the loan sharks had been harassing and threatening people and the people were defenceless. She also claimed that relocation was almost impossible as Indonesia was a very communal society and that she would have to live like a fugitive if she was to run to another place.

13.  As mentioned above, by the Letter, the applicant requested to return to her home country and to close her case.

Discussion

14.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  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. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

16.  At the outset, all of the applicant’s allegations are vague, bare contentions. The basis of her claim had always been against Basuki as she refused to marry him and to convert her religion to Hinduism, instead of any involvement of loan sharks as she now contended. Equally, there was no mention of her being attacked by loansharks in her non-refoulement claim or that Basuki was a loan shark. Accordingly, it is puzzling how the arguments now made in her written submissions are relevant to the factual basis of her existing non-refoulement claim. In any event, general assertions of her fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28]. All her allegations were vague, bare and general without any specific particulars or evidence in support. Accordingly, her submissions are plainly not proper grounds of appeal. On this basis alone, her appeal must fail.

17.  That said, this Court noted that at [8] of the Leave Decision, the Deputy Judge summarised the Board’s Decision as follows:

“8. The Board found that the applicant did not report the matter to police [38. (a)]; that her stay in Ho Chi Ming city for 2 months was uneventful [38. (c)]; that the threats and harassment from the creditor was far from severe pain and suffering, physical or mental, which triggered her escape from Indonesia [38. (d)].”

18.  With respect, it is apparent that those matters as summarised by the Deputy Judge were not facts pertaining to the applicant’s case or the Board’s Decision. It appears that the Deputy Judge had mistakenly looked at a board decision which is not related to the applicant’s case in deciding to dismiss the applicant’s application for leave to apply for judicial review. On that basis, the Deputy Judge proceeded on the wrong basis in making his decision.

19.  However, after looking at the Board’s Decision ourselves against the applicant’s proposed ground of judicial review, we are of the view that the Deputy Judge was in any event correct to refuse to grant the applicant’s application. We will explain why.

20.  As repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, Country of Origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].

21.  In the Board’s Decision, the Board had already taken into account the relevant COI and given sufficient weight to them before coming to the conclusion that state protection and internal relocation would reasonably be available to the applicant: see the Board’s Decision at [38] ‑ [41] and [55] ‑ [66]. The Board had also noted that there was no evidence that Basuki was a government official and / or was acting in an official capacity: see the Board’s Decision at [55]. As to state acquiescence, the Board also considered that there was no evidence showing that the state had consented or acquiescenced in any way: see the Board’s Decision at [56] ‑ [58]. In the premises, given the detailed analysis of the applicant’s evidence by the Board, we see no unreasonableness, irrationality or any procedural unfairness in the Board’s Decision as alleged by the applicant. The Board’s conclusions are all ones that it was reasonably entitled to make based on the evidence before it. Accordingly, the grounds as raised by the applicant in her intended judicial review must fail. It was therefore correct for the Deputy Judge not to grant leave to the applicant to apply for judicial review.

22.  For all the above reasons, the applicant’s appeal has no merit and we also dismiss the appeal on that basis.