RE METI ANGGIYA LESTARI

CACV 99/2025, [2025] HKCA 708

On appeal from [2025] HKCFI 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 99 OF 2025

(ON APPEAL FROM HCAL NO. 2461 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 25 February 2025[1] refusing leave to the applicant to apply for judicial review against the decision dated 1 August 2019 of the Torture Claims Appeal Board (“the Board”) dismissing the applicant’s appeal against the decision dated 17 January 2019 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim.

2.  The applicant’s appeal was scheduled to be heard on 18 July 2025. The applicant was directed to lodge her written skeleton argument not less than 28 days before the hearing and further warned that if she failed to do so, she shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with her appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 19 May 2025 and the Notice of Hearing dated 2 June 2025. 

3.  Despite the directions, the applicant has failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.  

The applicant’s claim

4.  The applicant is a national of Indonesia, aged 32. She last entered Hong Kong to work as a foreign domestic helper in 2015. After her employment contract was prematurely terminated, she did not depart and has overstayed since 8 August 2017. She was arrested for overstaying on 21 May 2018. She lodged a non-refoulement claim in May to June 2018.  

5.  The applicant's claim was on the basis that, if refouled, she would be harmed or killed by her father’s family over a land dispute in Nganjuk, East Java and by her family because she had converted to Christianity, having been brought up as a Muslim. The details of her claim were set out at [22] to [30] of the Board’s Decision. In gist, the applicant was an adopted child and she had inherited a piece of land from her adopted father who passed away when she was 8 years old. Her paternal aunts and uncles disputed her rights to inheritance on the basis that she was an adopted child. Subsequently, she moved to live with her maternal relatives and later with her adopted mother in 2006, but was ill-treated by them. She came to Hong Kong in 2015 to work as a foreign domestic helper. Through her Filipino and Indonesian friends in Hong Kong, she converted to Christianity and was baptised in 2016 in an Indonesian church. Enraged by her conversion, her adopted mother renounced her and threatened to kill her if she returns to Indonesia. She claimed that the family dispute over the land persists and she has no means to seek help from the police and to re-establish her life in Indonesia.

The Director’s and the Board’s decision

6.  By a decision dated 17 January 2019, the Director rejected her claim based on torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds. The applicant appealed to the Board. A hearing took place on 19 June 2019 during which the applicant had testified and answered questions from the Board. By a decision given on 1 August 2019, the Board dismissed her appeal.

7.  The Board considered that the risk of harm from the applicant’s paternal family was low as she took no interest in the land and had never been harmed by her paternal uncles and aunts. The risk of harm owing to her conversion to Christianity was also assessed to be low as the Board was not convinced that the applicant had fully embraced Christianity and questioned her continuous practice and commitment of the faith if she returns to Indonesia, given her rudimentary understanding of Christianity despite regular attendance at the church. Further, the Board assessed that she would be able to resort to adequate state protection, having regard to the country of origin information (COI) which indicated the presence of a concerted effort by the government to curb corruption among the police force and the availability of social assistance for women upon their return to the Indonesia work force. The Board found that internal relocation to a city such as Jakarta is a viable option for the applicant as she was equipped with the education and skills to obtain employment and shelter away from her family. For these reasons, the Board concluded that the applicant has failed to establish a real risk of harm entitling her to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.  By a Form 86 dated 26 August 2019, the applicant applied for leave to judicially review the Board's decision. She set out her grounds of review in her supporting affirmation, which was summarised by the Judge at [14] of the judgment as follows:  

“14. The Applicant advanced the following six grounds in her Form 86:

(1) the Director’s and the Board’s decisions are unfair and unreasonable;

(2) the Director failed to give proper weightage to the presence of state acquiescence;

(3) the Board was unreasonable and unfair in placing too much reliance on COI but failed to take her personal background and experience into account;

(4) the Director failed to take such argument into account or to give enough weight to such argument before reaching the Decision;

(5) the Director failed to attain the high standard of fairness; and

(6)   the Board was procedurally improper and/or unfair when assessing her explanations and asking questions that she was not in a position to respond.”

9.  The Judge held an oral hearing on 12 February 2025 but the applicant did not attend. By a judgment dated 25 February 2025, the Judge refused to give leave for judicial review. He gave his reasons at [15] to [20] as follows:

"15.  Some of these grounds are directed at the Director, some at the Board and some at both. As the Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, for the Applicant’s benefit, the Court assumed that all grounds are directed at the Board.  

Ground (1): unfairness and unreasonableness

16.  Except as particularized under the other grounds (which will be dealt with below), the Applicant’s complaints are vague, general and lacking in particulars. She did not attend the hearing and forewent the opportunity to provide particulars. 

Ground (2): failure to give proper weight to the presence of state acquiescence

17.  The Applicant complains about the Board’s failure to give proper weight to the presence of state acquiescence. However, state acquiescence was not an issue raised in the appeal. There is a total absence of evidence of influence by the state.

Ground (3): failure to give proper weight to COI supporting the Applicant’s case

18.  The Board referred to the COI for the purpose of considering availability of state protection. The COI considered are all from authoritative and credible sources. Some are in support of the Applicant’s complaint about police deficiency and corruption, some are in support of the efforts of the Indonesian government in fighting corruption and enhancing effectiveness of the police.  The conclusion reached by the Board is a finding of fact which is solely within the province of the Board which the Court in a judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision. This Court cannot find any such vitiating elements.

Ground (4): failing to take such argument into account or to give enough weight to such argument; Ground (5): failing to attain the high standard of fairness and Ground (6): impropriety and/or unfairness in assessing whether to accept her explanations and requiring her to respond to questions that she was not in a position to respond

19.  The Applicant gave no particulars of: (1) the argument which the Applicant alleged the Board failed to take into account or give enough weight to; (2) the particulars evidencing the Board’s failure in attaining the high standard of fairness; and (3) the particulars of the impropriety and unfairness alleged. By not attending the hearing, she forewent the opportunity of providing the particulars. In general, whether to take any fact into account and the weight to be attached to such facts taken into account are finding of facts solely for the Board. The Court could only leave this complaint to its overall scrutiny of the Decision.

Overall scrutiny

20.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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 assessed the Applicant’s claim on the basis of her factual case as she asserted.  It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as these are finding of fact, they 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 detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

This appeal

10.  On 4 March 2025, the applicant filed a Notice of Appeal to appeal the Judge's decision. She did not put forward any grounds of appeal in her Notice of Appeal but only stated that she disagreed with the Judge’s decision and wanted to appeal against it.

Discussion

11.  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 v Director of Immigration [2018] HKCA 524 at [14].

12.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

13.  In light of the established legal principles set out above, we are of the view that the appeal has no merits. Our reasons are as follows:

(1)  Critically, the applicant has failed to identify any error in the Judge’s decision or the reasons he gave for his decision. The Judge rejected the grounds raised by the applicant as not having been properly elaborated or presented with the relevant or necessary particulars to show errors in the Board’s decision and assessment of her claim. In our view, the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.   

(2)  Further, the Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that the decision is erroneous in law or irrational or there is procedural irregularity or unfairness. The Board assessed on the evidence that the risk of harm from her paternal and maternal family was low in light of her disinterest in the land, the absence of harm from her relatives and her questionable commitment and conviction of Christianity. All these are matters within the purview of the Board. We agree with the Judge that on the materials before the court, there is no proper basis to say that the Board’s conclusions are wrong or irrational. The intended judicial review therefore has no reasonable prospect of success, and that leave to apply for judicial review should be refused.

14.  Accordingly, this appeal is dismissed.

[1] [2025] HKCFI 731

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] This refers to the 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.