RE DIANITA ROHMAH

CACV 157/2023, [2025] HKCA 530

On appeal from [2023] HKCFI 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 157 OF 2023

(ON APPEAL FROM HCAL NO. 793 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 16 May 2023 ([2023] HKCFI 1209)  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.  She has lodged a written submission to support her appeal.

The applicant’s claim

3.  The applicant is an Indonesian aged 39.  She last entered Hong Kong in 2010 with permission to remain to work as a foreign domestic helper until 5 March 2012.  After her employment was terminated on 26 July 2011, she did not depart and has since overstayed.  On 15 February 2012, she was arrested by the police.  She later raised a non-refoulement claim based on fear of being harmed or killed by a triad related creditor due to an unpaid family loan.  Her claim was set out in detail by the Director in [7] of the Director’s decision. 

In gist, the applicant claimed that her family took out a loan to meet the medical expenses of her father.  When they could not make repayment, the creditor demanded to marry the applicant, and threatened to harm and kill her.  In the hope of making money to repay the loan, the applicant came to Hong Kong to work as a domestic helper.  However, her contract was terminated and she could not find new employment.  As she fears harm, she did not return to Indonesia and has sought non-refoulement protection. 

The decisions of the Director and the Board

4.  By a Notice of Decision dated 19 September 2018, the Director rejected the applicant’s non-refoulement claim, having considered the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. 

5.  The applicant’s appeal against the Director’s decision was heard before the Board on 11 February 2019.  At the hearing, the applicant informed the Board that in July 2016, she gave birth to a daughter, who is a Hong Kong permanent resident by reason of her father’s status.  She also said that the daughter’s father has provided maintenance support for the child even though he had separated from the applicant.  

6.  By a decision given on 20 February 2019, the Board dismissed the appeal. In gist, the Board accepted the applicant’s evidence on her personal and family background, but doubted the veracity of her claim about the moneylender due to significant discrepancies in her evidence.  The Board did not accept she had been threatened by a moneylender on account of an unpaid debt and found she faced no form of harm in this regard in her home country.  The Board noted that her daughter has the option of remaining in Hong Kong when the applicant returns to Indonesia.   The Board concluded that the applicant faces no real risk of harm and she has accordingly failed to establish her entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

7.  The applicant filed a Form 86 and an affirmation on 21 March 2019 to seek leave to judicially review against the decision of the Board.  In the supporting affirmation, the applicant contended that: (1)  the events underlying her claim happened many years ago and it was not easy for her to remember them; and (2)  the Board was mistaken in saying that her daughter had the option of remaining in Hong Kong with her father in that her father is a married man and he separated from the applicant after his wife found out their relationship.  The applicant asked that she be allowed to stay in Hong Kong to take care of her daughter. 

8.  The Judge dealt with the leave application on paper.  By a Form CALL-1 dated 16 May 2023, he dismissed the application, holding that the intended judicial review had no prospect of success.  He summarised the Board’s reasons at [9] and gave his reasons for refusing leave in [16] to [18] as follows: 

“9. The Board recapped the applicant’s claim and her personal background [28]-[36]. It also clarified the material aspects of her claim at the hearing [41]-[61]. The Board cast doubt on the applicant’s evidence in relation to the debt [65]. In particular, the Board noted that the applicant was inconsistent as to the details of the alleged first visit in October 2006, whether she was present or not [66]-[67]; that she was also inconsistent as to her presence in the alleged second visit in November 2006 [68]; and that the discrepancy in the applicant’s evidence in relation to the creditor’s visit, and his threatening messages was concerning and the applicant offered no credible explanations [70]-[71]. In this premise, the Board refused to accept the fundamental basis of the applicant’s claim.”

“16. The grounds as set out in paragraph 12 above do not assist her application. The Board’s refusal to accept the applicant’s evidence is not purely based upon the accuracy of her stated events. The Board found inconsistencies which the applicant was unable to explain as well. In the circumstances, there is nothing amiss for the Board to have come to its conclusion as it did in relation to the credibility of her evidence. See paragraph 9 supra. As to paragraph 74 of the Board’s Decision, the Board did not assert that her daughter could stay in Hong Kong. The Board simply said that the applicant asserted that her daughter could stay in Hong Kong. This is a matter of her own choice. In any event, her daughter is not an applicant in this application. This issue is irrelevant for this application.

17. There is no valid ground to challenge the Board’s Decision.

18.  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.”

The appeal

9.  By a notice of appeal filed on 24 May 2023, the applicant sought to appeal the Judge’s decision to this court.  Other than asserting there was a lot of error, the notice of appeal did not contain any substantive grounds of appeal.  

10.  In the written submission, the applicant outlined the procedural history of her claim.  She asked that considerations be given to the two babies she have in Hong Kong in that they would be deprived of the care of their mother if she was refouled.

Our reasons for decision

11.  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.

12.  We are of the view that the matters put forward by the applicant do not amount to any viable ground of appeal:

(1)  The Judge has rejected the applicant’s challenge to the Board’s decision (see [16] of the Form CALL-1 and [9] above).  In this appeal, the applicant has not pointed to any error in the Judge’s decision and his reasons for rejecting her grounds for seeking relief. 

(2)  In our view, the Board had given careful consideration to the applicant’s evidence and provided cogent explanations for doubting the veracity of her assertions about the loan and the moneylender.  The applicant has not been able to show any error in the Board’s assessment of the evidence and its finding of facts and risks of harm.  Neither has the applicant identified any irrationality or procedural irregularity in the Board’s decision. 

(3)  While we understand the applicant’s wish to stay in Hong Kong to take care of her young child or children, it is not a ground for affording non-refoulement protection.  

13.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.