UMI MAGHFIROH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 330/2023, [2024] HKCA 899

On Appeal From [2023] HKCFI 2479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 330 OF 2023

(ON APPEAL FROM HCAL NO 1300 OF 2019)

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J U D G M E N T

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Hon Fung J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”)  on 5 October 2023[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 3 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 26 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia born in 1986.  She first came to 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 14 December 2015 and was permitted to stay until 14 December 2017 or two weeks after termination of contract, whichever was earlier.  Her employment contract was prematurely terminated on 20 August 2016.  She overstayed and surrendered to the Immigration Department on 6 September 2016.  The applicant’s claim was made on the basis that if she returned to Indonesia, the loan shark (Suwandi)  would harm or kill her due to her inability to repay her two loans.  The factual background of the applicant’s claim was set out at [27] to [37] of the Board’s decision.

3.  By notice of decision dated 26 February 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. At the oral hearing, the Board found the applicant to come across as knowledgeable and was clear about her debt and the figures involved in terms of repayment of interest.  In favour of the applicant’s credibility, the Board accepted that the applicant had taken out the loans as claimed and that her business venture was unsuccessful.  

5.  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 doubted that her loan shark was so powerful that he could influence the police and the government officials, there was no evidence to show that her loan shark could actually check for her name at the airport to find out when she arrived in Indonesia, there was no evidence to show that her loan shark would harm her or the actual threat he might represent, and internal relocation was a viable option. 

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Indonesa.  By its written decision dated 3 May 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 15 May 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 stated that she wanted to give a more complete picture about her case 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 5 October 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [18] of the Form CALL-1 as follows:

“ 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 Decision 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, for the reasons given above, rejected the applicant’s claim.

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.”

Appeal to this Court

9.  On 19 October 2023, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were that the Judge’s order was not fair or reasonable and that she had a reasonable chance of success.  No particulars were provided.  

10.  The applicant has lodged written submissions in which she stated that the Board and the Judge were wrong and their decisions were Wednesbury unreasonable based on the applicant’s facts and circumstances in consideration that the applicant had previously been assaulted and threatened to be killed by her loan shark, the matter had been reported to the local police but there was no feedback, and her mother had disappeared.  

11.  At the hearing, the applicant did not make any submission beyond those she had submitted in writing.

12.  As such, we shall accordingly determine the appeal on the basis of the available documents, materials and evidence submitted by the applicant.  

Discussion

13.  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.

14.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because there was no evidence to show that the loan shark would harm the applicant or that he was as influential as alleged and internal relocation was a viable option.  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 public law error in relation to the Board’s decision. 

15.  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.

16.  The applicant’s appeal is accordingly dismissed.