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

CACV 18/2025, [2025] HKCA 668

On Appeal from [2024] HKCFI 3090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 18 OF 2025

(ON APPEAL FROM HCAL NO 1282 OF 2024)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 7 November 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Director of Immigration (“Director”) dated 10 July 2024 refusing to allow the applicant to make a subsequent non-refoulement claim.

2.  On 3 January 2025, the Judge granted an extension of time for the applicant to file her Notice of Appeal within 14 days.

Background

3.  The applicant is a national of Indonesia born in 1974. She last entered Hong Kong to work as a domestic helper on 17 January 2012 and was permitted to stay until 6 August 2013 or two weeks after termination of her employment contract, whichever was earlier. Her employment was prematurely terminated on 8 February 2013. The applicant overstayed and was subsequently arrested by the police on 19 March 2013. She later lodged a non-refoulement claim by way of written signification dated 6 March 2014. The applicant’s claim was made on the basis that if she returned to Indonesia, her estranged husband and/or his creditors would harm or kill her due to their monetary disputes. The factual background of the applicant’s claim was set out at [1] to [19] of the decision of Deputy High Court Judge Josiah Lam under her previous non-refoulement claim (HCAL 597/2018[2]).

4.  In relation to the applicant’s previous non-refoulement claim, the Director assessed her claim in relation to all applicable risks and determined it against her by way of notice of decision dated 2 September 2016 and notice of further decision dated 1 August 2017 respectively. Those grounds were BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6] The applicant appealed to the Board against the Director’s decision dated 2 September 2016 and an oral hearing was held on 11 October 2017 before the Board in relation to all applicable risks. By its written decision dated 1 December 2017, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decisions dated 2 September 2016 and 1 August 2017.

5.  On 30 April 2019, DHCJ Josiah Lam refused the applicant’s late application for leave to apply for judicial review against the Board’s decision dated 1 August 2017. On 24 July 2019, the Judge refused to grant the applicant leave to appeal against the decision dated 30 April 2019 out of time. Subsequently, this court dismissed the applicant’s renewed application on 31 May 2021 and also dismissed the applicant’s notice of motion on 9 September 2022. On 16 February 2024, the Court of Final Appeal dismissed the applicant’s application for leave to appeal.

6.  In relation to this appeal, the applicant made a request for making a subsequent claim for non-refoulement protection under the unified screening mechanism by way of letter dated 5 March 2024. The applicant was legally represented and, upon the Director’s request, the applicant submitted further evidence, information and supporting documents by way of letter dated 16 April 2024. The supporting documents included copies of her medical appointment slips and a refill prescription coupon issued by a public hospital.

7.  By notice of decision dated 10 July 2024, the Director refused to permit the applicant to make a subsequent claim. In assessing the applicant’s case, the Director considered that the further information provided about the continuing threat of her estranged husband and his creditors still chasing her was a bare assertion based on hearsay information. It found that state protection would still be available and internal relocation would also still be viable for the applicant. In regards to her previous breast cancer surgery and ongoing medical care, the Director considered that there was country of origin information (“COI”) to indicate that the applicant would be able to receive medical care for her present state and for possible relapse in Indonesia, contrary to her belief. Therefore, the Director did not accept that there had been any significant change of circumstances since the determination of her previous claim such as to give her intended subsequent claim a realistic prospect of success.

The Judge’s decisions in the court below

8.  On 5 August 2024, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Director’s decision dated 10 July 2024. In the accompanying affirmation, she stated that the Director had clearly made an error in its determination, that her problems still existed in Indonesia rendering it unsafe to return, that the Director’s determination consisted of biased observations, that the Director failed to give sufficient attention to her claim by rejecting it as hearsay, that the Director considered limited COI and failed to show any new COI with contrary information, that the Director failed to provide proper justification for dismissing her case, that the Director failed to provide a screening interview to the applicant, and that the Director failed to consider some important factors that were not mentioned in the written discussion (without specifying what those factors were).

9.  The Judge considered the application on the basis of the documents and the applicant’s submissions given at the oral hearing scheduled on 3 September 2024. On 7 November 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [15] to [19] of the Form CALL-1 as follows:

“ 15. These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to her case, or in what way did the Director or the immigration officer err in the decision or that it was unfair or unreasonable, or what error did the Director make in the determination that there is no realistic prospect of success in her subsequent claim, or in what way was the Director’s determination biased against the Applicant or failed to take proper consideration, or what evidence that the Director had overlooked in his determination of the Applicant’s request, while it was entirely within the Director’s discretion to decide whether to hold a further screening interview for the Applicant based on the amount and adequacy of the evidence in writing provided by her and her lawyer in support of her subsequent claim which consisted essentially of just a few medical appointment slips some 7 or 8 years apart from each other, and for which I do not find any error on the part of the immigration officer of not to hold any screening interview for her request in the correct exercise of discretion. As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

16. There is no question that a claim to resist removal by reference to ill-health which the claimant argues may violate his or her rights under Article 3 of the European Convention on Human Rights, or BOR 3 of our HKBOR, is one of the most controversial questions which the law of human rights can generate, as noted by Lord Wilson of the UK Supreme Court in the case of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, but the procedural requirements for such a claim are clear as set down by the European Court of Human Rights (“ECtHR”) in Paposhvili v Belgium (2017) Imm AR 867, reaffirmed in Savran v Denmark (Application no. 57467/15, and adopted by the UK Supreme Court in the AM case above, and which can be summarized as follows:

(a) That it is for the applicant to adduce before the returning state evidence capable of demonstrating that there are substantial grounds for believing that if removed he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3;

(b) That where such evidence is adduced in support of an application under Article 3, it is for the returning state to dispel any doubts raised by it by subjecting the claimed risk to close scrutiny, and to address relevant COI including reports of reputable organizations about treatments in the receiving state;

(c) That it is for the returning state to verify on a case-by-case basis whether the care generally available in the receiving state is in practice sufficient to prevent the applicant from being exposed to treatment contrary to Article 3, and also to consider the accessibility of the care treatment to the particular applicant including by reference to its cost if any, to the existence of family or social network, and to its geographical location; and

(d) That if serious doubts continue to surround the impact of removal, the returning state has to obtain an individual assurance from the receiving state that appropriate treatment would be available and accessible to the applicant.

17. In the present case, and [much] as I am sympathetic to the Applicant’s situation, it is clear to me that the immigration officer was correct to find that she failed to demonstrate that there are substantial grounds for believing that if removed to her home country in Indonesia that she would be exposed to a real risk of being subjected to treatment contrary to BOR 3 or any other risk under any of the applicable grounds when she simply produced a few medical appointment slips resultant from her breast cancer surgery some 8 years ago, and that there was never any evidence or information from her as to what those appointments were for other than the usual follow-up care to ensure no relapse of her cancer, nor was there any suggestion of any new medical issue that she may now have other than some bare assertion of chest pain when at all material time that she was represented by a lawyer from DLS who could have easily obtained on her behalf any such medical evidence from those hospitals identified in her medical appointment slips.

18. Furthermore, it is also clear from those relevant COI referred to by the immigration officer that there is nothing to suggest that upon her return to Indonesia that the Applicant would be at risk of being deprived of similar medical care and follow-up services for her medical condition resultant from her breast cancer operation of 8 years ago or for any new medical issue that she may now have or in future in Indonesia.

19. In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss her application.”

10.  On 22 November 2024, the applicant made an application for an extension of time to appeal against the Judge’s decision as she was 1 day late with her intended appeal. On 3 January 2025, the Judge granted her an extension of time to file her notice of appeal against his decision in consideration of her insignificant delay and her medical circumstances.

Appeal to this Court

11.  On 14 January 2024, the applicant filed her Notice of Appeal against the Judge’s decision dated 7 November 2024. Her stated grounds of appeal were, essentially, that there was a lack of language and legal assistance provided to her in these legal proceedings in the lower court resulting in procedural unfairness, that there was no hearing arranged for her to explain herself, that the Director ignored all new changes including the murder of her father, and that the court had not arranged for the judgment to be translated for her.

12.  The applicant lodged written submissions in which she primarily complained about the lack of legal and language assistance at different stages of her case, and in the context of requesting translation of the decisions to her and allowing her reasonable time to respond. She also complained that the duty lawyer representing her should have assisted her by obtaining further medical evidence, such as relevant medical reports, as pointed out by the Judge. The applicant further stated that the Director did not hold a screening interview for her request for making a subsequent claim and that the Director did not consider the seriousness of her medical condition and whether she would have access to the necessary medical treatment and follow up care in her home country.

13.  The applicant was absent at the hearing of the appeal. She was contacted by telephone and she indicated that she was unable to attend the hearing. In the circumstances, we consider the appeal on the basis of the written materials submitted.

Discussion

14.  In assessing the merits of the appeal, we 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 an application for 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’s decision, 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.

15.  Subsequent non‑refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

“ 37ZO. Limitation on subsequent claim

(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

…”

16.  In the present case, the Director decided that the applicant’s claims of ongoing threats from her estranged husband and his creditors and her current medical circumstances did not constitute any significant change of circumstances since the determination of her previous claim. He refused to permit the applicant to make a subsequent claim for non-refoulement protection on the ground that that there had not been a significant change of circumstances and gave reasons for coming to that conclusion based on the matters relied upon by the applicant for making another claim. Such a decision is within the province of the Director, and the court will not interfere unless it is vitiated on public law grounds. No valid public law grounds have been raised by the applicant. As for the applicant’s complaint that the Director did not arrange a screening interview for her, Section 37ZO (2) requires an intending applicant to provide “sufficient evidence ‘in writing’ to satisfy an immigration officer…”. It was within the Director’s discretion to decide her application on paper without an additional screening interview.

17.  In the applicant’s notice of appeal, the applicant made various complaints that essentially emphasised the lack of language and legal assistance in these proceedings. It has been repeatedly stated by the Court of Appeal that as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process, and that the high standard of fairness required by law does not entail an interpretation service being made available to an applicant at all times as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11]. We note that all the court documents filed in this appeal and in the court below were in English. It is thus clear that either the applicant was herself conversant with the English language or she had access to language assistance of her own if she found it necessary. In the lower court, the applicant received assistance from an interpreter at both oral hearings before the Judge. Further, we note that the applicant was legally represented in the preparation of her request for making a subsequent claim to the Director, which formed the basis of her present claim. Thus, we do not find the non-availability of legal representation in the processes before the court to amount to any procedural unfairness. In respect of the applicant’s complaint that her previous legal representative should have obtained further medical evidence on her behalf, there is nothing to suggest that any medical reports would have shown any pressing concerns or medical conditions that could have amounted to any significant change of circumstances from the Board’s observations of her evidence submitted.

18.  The applicant claims that the Director ignored a new change, which was the murder of her father, and this appears to be a new ground that was not raised in the court below. She did not provide any particulars of when her father was murdered or the relevance of the murder to her claim. The Court of Appeal has a discretion, not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice: see for example, Re MD Zahidur Rahman Manik [2018] HKCA 766 at [13]. In light of the lack of particulars of the murder to show how this would be a significant change of circumstances, we are of the view that there are no special circumstances why this new ground should be considered.

19.  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.

20.  The applicant’s appeal is accordingly dismissed.