RE ENDANG YULIANTI

CACV 59/2023, [2024] HKCA 1057

On appeal from [2023] HKCFI 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 59 OF 2023

(ON APPEAL FROM HCAL 562/2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 21 February 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 20 February 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 September 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She last entered Hong Kong on 28 June 2016 as a foreign domestic helper, but she overstayed and was arrested for theft on 12 December 2016.  Subsequently, she lodged a non-refoulement claim by way of a written representation dated 7 December 2016.

3.  The applicant’s claim was based on a fear of being ill-treated by her foster-mother, Rasya.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL‑1 Form”)[1].

4.  By a Notice of Decision dated 18 September 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board.  After a hearing on 11 January 2019, the Board dismissed the appeal on 20 February 2019 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found on the facts and evidence that, while the applicant had on occasions been harmed and abused by Rasya in the past, the applicant, as a grown and “worldly” woman no longer holds any subjective fear of harm in the event that she returns to Indonesia and thus there is no real risk of harm should she be refouled.

The Judge’s decision

6.  The applicant filed a Form 86 on 27 February 2019 seeking to judicially review the Board’s Decision.

7.  In the applicant’s supporting affirmation, she simply claimed, without elaboration, that the Board’s Decision was unfair.

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:

“13.  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).

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.  The Board had considered her case and found that she does not have real risk of being harmed upon her return to her country and that she is willing to return to her country. The ground in paragraph 12 above is only her opinion and is not valid ground to challenge the Board’s Decision.

17.  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.

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

Grounds for appeal

9.  In the Notice of Appeal dated 27 February 2023, the applicant expressed her disagreement with the Judge’s decision, but merely stated that she “want[s]” to appeal.  She also complained that the Board did not “give [her] enough time” to present her case during the oral hearing before it, and that she was “mentally” unprepared for the hearing.  She alleges that she did not “get justice” as a result.  

10.  The applicant lodged written submissions on 13 March 2023, which contained little more than repetitions of the procedural history and the alleged dangers she may face should she be refouled.

11.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

12.  By a letter dated 12 July 2024, the applicant informed the Court that on 17 June 2024 she had “sent a letter about cancellation of [her] refugee/paper (Form 8) case”, but that she was yet to receive a “deportation reply regarding [her] refugee/paper (Form 8)”.  However, she also stated in the letter than she wished to “… cancel … [her] case as soon as possible because it can help the process of [her returning] home”.

Discussion

13.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

14.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

15.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.