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CACV 333/2023, [2024] HKCA 142
On Appeal from [2023] HKCFI 2521
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 333 OF 2023
(ON APPEAL FROM HCAL 984 OF 2019)
________________________
________________________
| Before: |
Hon Kwan VP and Lisa Wong J in Court |
| Date of Hearing: |
30 January 2024 |
| Date of Judgment: |
8 February 2024 |
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal by the applicant against the order made by Deputy High Court Judge K W Lung (“Judge”) on 17 October 2023 (“Judge’s Decision”) refusing her leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board/Non-refoulement Petition Office (“Board”) given on 4 April 2019 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 25 May 2018 (“Director’s Decision”).
Bases and allegations in support of NRF Claim
2. The bases of the NRF Claim made by the applicant, a national of Indonesia, are fears of being killed by (1) debt collectors because her parents failed to pay their debt; and (2) five men (“Five Men”) because the applicant witnessed their attempted rape of the applicant’s neighbour.
3. The circumstances giving rise to such alleged fears have been set out in detail in paragraph 11 of the Director’s Decision, and paragraphs 20 to 34 of the Board’s Decision, and in gist in [5] of the Judge’s Decision embodied in the Form CALL-1 dated 17 October 2023, [2023] HKCFI 2521 (“Form CALL-1”).
4. Briefly:
(1) In early 2005, the applicant’s parents took out a bank loan of 50 billion Indonesian rupiahs. However, they soon failed to meet their repayment obligation. By around mid 2005, debt collectors (one of whom identified himself as an employee of the bank) went to their home and verbally threatened to confiscate the house, send members of the applicant’s family to prison, or even kill them. The debt collectors subsequently re-appeared several times.
(2) One night at the end of 2005, the applicant saw the Five Men attempting to rape her neighbour, Mira. The applicant was threatened at gunpoint not to report the incident to the police or tell anyone else. The applicant was kicked, slapped and pushed before she was told to go. The applicant sustained no injury except some redness. She did not know the identities of the Five Men. One of them claimed to be a policeman. Three boasted to be politically affiliated.
(3) In fear, the applicant moved to Surabaya the next morning. She stayed with a friend for a week and then with an employment agency for around 7 months.
(4) From 2006 to 2008, she obtained a visa to come to Hong Kong to work as a foreign domestic helper.
(5) Towards the end of 2008, she returned to her home in Indonesia to take her two-week vacation, during which period the debt collectors did not show up.
(6) In January 2009, she came to Hong Kong again to work as a foreign domestic helper.
Overstaying in Hong Kong and lodgment of torture claim and NRF Claim
5. The applicant’s second foreign domestic helper contract was terminated prematurely on 28 December 2010. She applied for extension of stay as a visitor and was granted permission to stay as such until 3 February 2011. She did not leave on or before the expiry of her visa and has been overstaying in Hong Kong since 4 February 2011.
6. On 29 December 2011, the applicant was arrested by the police for overstaying. She was subsequently convicted for the offence and sentenced to 4 weeks’ imprisonment suspended for 3 years. A removal order was issued against her on 1 February 2012.
7. On 10 June 2013, she lodged a torture claim under Part VIIC of the Immigration Ordinance, Cap 115. The torture claim was rejected on 13 November 2013.
8. After the Unified Screening Mechanism had come into operation in 2014, the applicant’s claim was processed as an NRF Claim on all applicable grounds except torture risk[1] which had already been rejected. The NRF Claim was thus assessed for the remaining grounds for non-refoulement protection: persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk.[4]
Director’s Decision
9. The Director assessed the applicant’s NRF Claim based on the information she had provided in her Torture Claim Form dated 16 September 2013, her Supplementary Claim Form dated 11 April 2018 (“SCF”) (submitted through the Duty Lawyer Service which was then advising and representing the applicant) and at the screening interview by the Director’s representative(s) on 27 April 2018.
10. The Director found the NRF Claim unsubstantiated under all 3 remaining applicable grounds. The Director found that (1) the future risk of the applicant’s being harmed by the Five Men and/or the debt collectors is low given the low intensity and frequency of past ill treatment and (2) the availability of state protection and internal relocation alternatives would lower or even negate the applicant’s perceived risk of harm.
Appeal to Board and Board’s Decision
11. The applicant appealed against the Director’s Decision to the Board.
12. The Board conducted a rehearing of the NRF Claim on 14 January 2019, at which the applicant testified before, and answered questions by, the Board through an Indonesian interpreter.
13. The Board dismissed the appeal on all 3 grounds for non-refoulement protection for the following reasons.
14. The Board did not find either of the applicant’ alleged encounters with the debt collectors or the Five Men to be credible. Having heard the applicant and considered the banking regulations in Indonesia, the Board did not accept that bank employees would threaten the applicant or her parents due to default on a loan. As for the attempted rape, before the Board, the applicant failed to recall even the slightest details of the incident and could not remember what she had said in her SCF when she was reminded of it. The Board found that she did not witness the alleged attempted rape and her previous account was fabricated. The Board did not accept that the applicant will be at risk of harm arising from either incident she relied on if she should return to Indonesia.
15. The Board also considered the applicant’s claim that she had converted from Muslim to Christianity in 2010 in the context of persecution risk. The Board did not accept that she had formally converted. At the Board hearing, the applicant did not hesitate to say Muslim when asked about the religion she followed. There was also no indication that her family will harm her even if she continues to be associated with Christianity upon return to Indonesia. Therefore, the Board also did not see any real risk following from the applicant’s alleged conversion in the event of refoulement.
Application for leave for judicial review and Judge’s Decision
16. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued in HCAL 984/2019 on 11 April 2019 and the supporting affirmation filed on the same day, the applicant sought leave to apply for judicial review of the Board’s Decision.
17. The Form 86 sets out no proposed grounds for judicial review. The supporting affirmation lists several grounds under the headings of “procedural impropriety” and “error or misdirection in law”. The applicant cited, without any supporting particulars, multiple alleged failings of the Board: failure to properly apply paragraph 2 of the “UN committee against Torture General Comment No. 2”; failure to conduct sufficient inquiry into the COI; failure to provide sufficient reasons/bases on the assessment of BOR3 risk; failure to take into account the psychological strain and threats to the applicant personally or the direct threats to kill her and failure to consider her fear properly. She also said there was insufficient basis to conclude that she would not face torture risk or BOR3 risk upon refoulement.
18. The leave application was heard on 8 February 2023 and the applicant appeared in person with the benefit of an English/Indonesian interpreter.
19. Having heard the applicant and considered the paper, the Judge refused to grant leave to apply for judicial review of the Board’s Decision for the reasons set out at [14] – [19] of the Form CALL-1:
“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she was free to express herself before the Board.
16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … …Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board.’
17. The Board, having considered the evidence, had rejected her story in support of her claim. Those grounds in paragraph 13 above do not assist her application. They are either bare assertions or her comments without evidence in support. She had raised no issue on her psychology or psychiatric condition before the Board. She cannot complain that the Board had not called for the psychological or psychiatric reports.
18. The applicant has raised no valid ground to challenge the Board’s Decision. 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.
19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”
Appeal to Court of Appeal - grounds of appeal and submission
20. By the notice of appeal filed herein on 20 October 2023, the applicant appealed against the refusal of leave for judicial review, without stating any grounds of appeal, properly so called.
21. By the written submission lodged on 23 November 2023, the applicant raised the following purported grounds: (1) that the Board and Director failed to take into account or give proper weight to relevant considerations and materials (without specifying what they are); (2) that the Judge was wrong to support the Board’s Decision because the Board did not follow the high standard of fairness; (3) that the assessors of her claims did not inquire into the fears she has raised and the COI clearly showed that her country would not protect her; (4) that it will be too risky for her to return to her home country; (5) that her claims are not a private and personal matter but the decision maker did not observe her fear properly; (6) that the Judge did everything in the “fair and standard way” and did not focus on her fear; and (7) that she has married a local man and her dependent visa application is under processing.
22. The applicant did not appear at the hearing of the appeal on 30 January 2024, despite having been given notice of the date and time of the hearing. This judgment is therefore based on the written material before the court.
Discussion
Court of First Instance’s role in judicial review in non-refoulement claim
23. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim
24. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst at [14(2) & (4)].
Appeal has no merit
25. The applicant’s so-called proposed grounds for judicial reviews were but general and bare assertions without any supporting particulars or evidence. Whilst phrases such as “procedural impropriety” or “misdirection of law” were used, the applicant plainly failed to articulate any matters which could properly give rise to a ground based on error of law, procedural unfairness or irrationality on the part of the Board. The application for leave to apply for judicial review was bound to fail. The Judge did not err in refusing leave.
26. We could not discern from either the applicant’s notice of appeal or the written submissions any matters which could form the bases upon which the Judge’s Decision should be disturbed. The applicant has failed to articulate any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nothing she has raised merits serious consideration as a potential basis to interfere with the Judge’s Decision.
27. In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
Disposition
28. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
(Susan Kwan)
Vice President
Court of Appeal
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(Lisa Wong)
Judge of the Court of
First Instance
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The applicant, unrepresented and absent
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the HKBORO.
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