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

CACV 209/2023, [2023] HKCA 933

On Appeal From [2023] HKCFI 1627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 209 OF 2023

(ON APPEAL FROM HCAL NO 600 OF 2023)

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J U D G M E N T

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

1.  On 4 July 2023, the Applicant filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 23 June 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 30 March 2023, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 30 January 2015 and 21 November 2016 rejecting her non-refoulement claim.

BACKGROUND

2.  The Applicant is a national of Indonesia. She last arrived in Hong Kong on 7 May 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 12 April 2010 or within 14 days of its termination, whichever was the earlier. Her employment was prematurely terminated on 24 September 2009. She did not depart after the expiry of her limit of stay, and overstayed illegally. She was arrested by the Police on 16 July 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband’s creditor over his unpaid debts. Details of the Applicant’s claim were summarised by the Judge at §§1-4 of the CALL-1 Form.

3.  By a Notice of Decision dated 30 January 2015 and Notice of Further Decision dated 21 November 2016, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decisions”).

4.  The Applicant appealed the Director’s decisions to the Board. On 30 March 2023, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decisions (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her husband’s creditor over her husband’s debts that caused her to overstay in Hong Kong, and that in any event it was a private monetary dispute between her husband and his creditor without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia if resorted to as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.  On 21 April 2023, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86 or in her supporting affirmation of the same date.

6.  On 23 June 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[9] On 21 April 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

…

[11] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[12] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

THIS APPEAL

7.  In her Notice of Appeal filed on 4 July 2023, the Applicant stated that the High Court did not find any error in the decision of the Adjudicator, and she would or wanted to show “some error”. She also said that the court did not ask her anything about her appeal.

8.  In her written submissions dated 18 July 2023, the Applicant sets out her personal background and repeats the allegation that if she returns to Indonesia, she will be killed by her creditor and others. She also alleges that the High Court did not hold any oral hearing, and says that she was not satisfied with the court’s judgment.

DISCUSSION

9.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant’s allegation that the High Court did not hold any oral hearing of her leave application is incorrect. From the court records, it can be seen that the Applicant attended a hearing before the Judge on 30 May 2023. At the hearing, the Applicant told the Judge that she had set out the grounds of her application in her affirmation, and had nothing else to say.

12.  The Applicant has failed to identify or show any error in the Judge’s decision of 23 June 2023, and has failed to raise any viable ground of appeal against the Order.

13.  The Applicant’s appeal has no merits, and is dismissed.