RE NANA RIYANI

CACV 163 /2024, [2025] HKCA 131

On appeal from [2024] HKCFI 1009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 163 OF 2024

(ON APPEAL FROM HCAL NO. 1301 OF 2019)

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JUDGMENT

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

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 18 April 2024^[1] dismissing her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) which dismissed her appeal against the decision of the Director of Immigration (“the Director”) rejecting her non‑refoulement protection claim. 

2.  The applicant has consented to the appeal being determined by the Court of Appeal on the papers. 

3.  Despite directions given by the Registrar of Civil Appeals, the applicant has not lodged any written submission to support her appeal.    

The applicant’s claim

4.  The applicant is an Indonesian aged 37.  She last entered Hong Kong with permission to remain to work as a foreign domestic helper until 19 October 2012.  When her employment was terminated on 5 October 2012, she did not depart and has since overstayed.  On 18 October 2017, she was arrested during a joint operation of the Immigration Department and the police.  She later raised a non-refoulement claim based on fear of being harmed or killed by her uncle.  Her claim was set out in details by the Director in [7] of the Director’s decision.

5.  In gist, the applicant claimed that her parents divorced when she was ten years old.  She and her mother were financially supported by her maternal uncle, who had been borrowing from a loan shark to make ends meet.  In 2008, the applicant started to work in Hong Kong as a foreign domestic helper, and she had been sending her earnings to her uncle partly to repay him and partly to meet the family expenses.  After her uncle retired in 2012, he was unable to keep up with his loan repayment.  He asked the applicant to either repay his loan or to marry the loan shark as a way of clearing the loan, an idea supported by her mother.  The applicant refused to marry the loan shark.  At the same time, she was unable to find a new employer when her employment ended in October 2012.  Her uncle was furious while her mother developed a depressive condition and died in March 2013.  Her uncle blamed the applicant for causing her mother’s illness and death, making him debt-ridden and causing him to sell his house to repay part of the debt.  He made death threats to the applicant and warned her not to return to Indonesia.               

The decisions of the Director and the Board

6.  By a Notice of Decision dated 10 July 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

7.  The applicant’s appeal against the Director’s decision was heard before the Board on 9 November 2018.  By a decision given on 20 February 2019, the Board dismissed the appeal. 

8.  In gist, the Board accepted the applicant’s evidence, finding that it was generally consistent with the information she provided in the interview with the immigration officer.  The Board found that the applicant’s problem was a private dispute with no state involvement, and the applicant’s uncle was unlikely to harm her as admittedly the threats he made were strong words uttered in moments of anger with no real intention to really cause harm.  The Board also found that state protection was available which would reduce any risk that the applicant might face.  The Board concluded that the applicant failed to establish her entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

9.  The applicant filed a Form 86 and an affirmation on 15 May 2019 to seek leave to apply for judicial review against the decision of the Board.  Other than stating in the supporting affirmation that her dangerous situation was being ignored, the applicant did not provide any grounds for seeking relief. 

10.  The Judge dealt with the leave application on paper.  By a Form CALL-1 dated 18 April 2024, he dismissed the application, holding that the intended judicial review had no prospect of success for the reasons set out in [13] to [18].  Specifically, the Judge had regard to [45] to [48] of the Board’s decision which recorded the applicant’s evidence and explained its assessment of the risk of harm as follows: 

“45. … However, she stated in the hearing that she believed that the threats administered by her uncle was out of character; that those strong words were probably out of the spurt of his anger without any real intention to harm her.

46. The Appellant described her uncle as a kind person and he had never assaulted or fought with any others.

47. Furthermore, the Appellant admitted at the end of the hearing that she still loves and respects her uncle. … her uncle will be unlikely to harm her.

48.   In view of the above, there are no substantial grounds for believing that the Appellant would be in danger of being subjected to any severe pain of suffering upon her return to Indonesia.”

The appeal

11.  By a notice of appeal filed on 26 April 2024, the applicant sought to appeal the Judge’s decision to this court.  The applicant stated in the grounds of appeal that:

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

Our reasons for decision

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), who are the 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.  Further, an appeal to the Court of Appeal is not an avenue for the applicant to re-argue the case.  The Court of Appeal will not interfere with the first instance decision unless it is shown that the first instance judge has erred.

13.  We are of the view that the matters set out in the notice of appeal do not amount to any viable ground of appeal.  Importantly, the applicant has not pointed to any error in the Judge’s decision.  Secondly, both before the Judge and in this appeal, the applicant has not identified any error in the Board’s finding of facts and assessment of risks of harm, or any irrationality or procedural irregularity in the Board’s decision.  In light of the Board’s finding that the applicant’s uncle was unlikely to harm her, the applicant’s assertion that she will be in danger if she returns to Indonesia has no supporting foundation.  The Judge’s decision to dismiss the application for leave to apply for judicial review cannot be faulted.  

14.  In the circumstances, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.