RE SUSANTI

CACV 384/2023, [2024] HKCA 380

On appeal from [2023] HKCFI 2852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 384 OF 2023

(ON APPEAL FROM HCAL 1148 OF 2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 16 November 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 18 April 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 February 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She last entered Hong Kong as a foreign domestic helper, but she overstayed after the premature termination of her employment, and was arrested by the police on 24 December 2011.  Thereafter, the applicant raised a non-refoulement claim, which the Director treated as having been made on 21 January 2016 on the basis of her undated written signification received by the Immigration Department on 18 January 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by her husband and his creditor.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 15 February 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 28 December 2018 and at which the applicant appeared in person.  The Board found, on the facts and evidence, that while she was part of a dispute between herself, her husband and his creditors, the risk of harm is low by reason of the lapse of time since around 2007, which was the last known incident of domestic abuse by her husband.  The applicant’s appeal was dismissed by the Board’s decision dated 18 April 2019 (i.e. the Board’s Decision).

The Judge’s decision

6.  The applicant filed a Form 86 on 30 April 2019 seeking to judicially review the Board’s Decision, but did not set out any grounds for review.

7.  In her supporting affirmation filed on the same date, the applicant merely exhibited a copy of the Board’s Decision.

8.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form: 

“13. 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).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. 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.’

16. The Board had, for the reasons given in paragraph 9, supra found that the applicant had failed to establish that she will have real risk of being harmed or killed as claimed.

17. 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.

18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 23 November 2023, the applicant set out her grounds of appeal, which are essentially that:

(1)  the court failed to “exercise caution and diligence in handling [her] case”, rendering the proceedings unfair;

(2)  she was prejudiced by reason of the lack of language assistance and legal representation;

(3)  no oral hearing was fixed for her in respect of the leave application before the Judge.

10.  In her written submissions dated 12 March 2024, the applicant essentially repeated the matters as stated in her Notice of Appeal.

11.  The applicant was absent at the hearing of the appeal on 9 April 2024.  In the circumstances, we have proceeded to determine the present appeal on the basis of the documents lodged with the court.

Discussion

12.  The applicant has in the Notice of Appeal failed to identify, with proper particularity, any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

13.  In the application in the court below, the applicant provided no particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

14.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

15.  As to the applicant’s complaint of the apparent unfairness caused by the lack of legal representation, we note that in this case, the applicant had the benefit of legal representation in presenting her case to the Director, including the submission of her non-refoulement claim form.  As this court has held, it does not follow from the application of high standards of fairness that a non-refoulement protection claimant is absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

16.  Further, the applicant’s complaint of prejudice by reason of her lack of proficiency in English is of little merit.  We note that she was able to, either by herself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.  In this regard, we also note the assistance she had received from an interpreter in the proceedings at both Director and Board levels.

17.  We are equally unpersuaded by the applicant’s complaint of the lack of an oral hearing before the Judge, as no such request was made by her in the Form 86 (nor the supporting affirmation).  In the absence of such request, the Judge could not be faulted for determining the leave application on the papers.

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.