RIKA ASTUTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 179 /2020

[2021] HKCA 10

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2020

(ON APPEAL FROM HCAL NO 1609 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung 4 June 2020^[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim. The appeal is dealt with on paper due to the applicant’s failure to comply with the order of the Registrar of Civil Appeals to lodge her skeleton argument as mentioned below.

2.  The applicant is a national of Indonesia.  She is 37 years old.  She came to Hong Kong in 2008 as a domestic helper and last entered Hong Kong on 8 July 2011.  Her last contract was terminated early and she has overstayed since 13 September 2013.  She was arrested by the police on 14 May 2014 and lodged a non-refoulement claim which was received by the Immigration Department on 30 May 2014.  Her claim was made on the basis that she would be harmed or killed by her father's creditor.

The Director’s decision

3.  By a Notice of Decision dated 22 December 2016, the Director of Immigration (“the Director”) rejected the applicant’s non‑refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

4.  Taking into account the absence of past intensified ill‑treatment from the creditor, the Director considered that the applicant does not have any imminent and substantial risk of being harmed or killed by the creditor if she is to be returned to Indonesia.  The Director also found that there is no indication the Indonesian government has targeted on the applicant.  The Director further considered that the availability of state protection and internal relocation option further lowers or negates the perceived risk of harm.

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision. She was absent at the oral hearing held on 12 April 2018.  The Board considered that the risk of harm to the applicant in the future should she return to Indonesia is remote.  The Board also considered that the applicant would be able to obtain adequate state protection in Indonesia.  Thus, the Board held that the applicant’s claim fails on all applicable grounds and rejected the appeal on 26 July 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 13 August 2018 to seek leave to apply for judicial review against the decision of the Board.

7.  She put forward these grounds for her intended challenge:

(1)     she was unable to submit any document during the interview but her problem is true;

(2)     her enemies are very powerful and they can do any harm to her life so she needs to remain in Hong Kong until her problem is solved.

The judge’s decision

8.  The applicant attended the hearing before DHCJ K W Lung on 3 September 2019.  She applied for a stay of the proceedings pending the outcome of her legal aid application.  The judge refused to grant a stay as the applicant failed to give any good reason for her late legal aid application.  The applicant admitted before the judge that she was free to state her case before the immigration officer and submitted that she had no comments on the Board’s findings.  She also agreed that it was fair for the adjudicator to assess her appeal on paper.  The judge held that the applicant failed to show she has a reasonable prospect of success in her intended judicial review and dismissed the leave application on 4 June 2020.

Grounds of appeal

9.  The applicant stated the following grounds of appeal in the Supplemental Notice of Appeal dated 14 October 2020:

(1)     she cannot go back to her home country because she has no money to repay the loan borrowed by her father and the creditor is a powerful man who can do anything he wants;

(2)     the Indonesian government cannot save her because all the officers are corrupt.

Non-compliance with order for lodging a skeleton argument

10.  Directions were given by the Registrar of Civil Appeals on 28 October 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

11.  The appeal was scheduled to be heard on 5 January 2021.  The applicant failed to lodge a skeleton argument on or before the deadline of 8 December 2020.  As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By letter dated 9 December 2020, the court informed the applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

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.

13.  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.

14.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

15.  The applicant’s grounds of appeal do not constitute viable grounds to reverse the judge’s decision.  In particular, the applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.  The applicant also failed to provide any evidence to rebut the Board’s findings. 

16.  For the above reasons, there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.