RE SRINGATIN

CACV 407/2023, [2024] HKCA 381

On appeal from [2023] HKCFI 3064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 407 OF 2023

(ON APPEAL FROM HCAL 1554 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 To (“the Judge”) given on 28 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 15 May 2019 (“the Board’s 2^nd Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 September 2018 (“the Director’s 2^nd 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 9 December 2011.  She later lodged a torture claim, which was rejected by the Director on 1 March 2013 (“Director’s 1^st Decision”).  Her appeal against the Director’s 1^st Decision to the Board was dismissed on 12 April 2013 (“Board’s 1^st Decision”).

3.  The applicant thereafter raised a non-refoulement claim, based on the 3 remaining applicable grounds for non-refoulement protection, on 24 March 2014.

4.  The applicant’s claim was based on a fear of being harmed or killed by a man named Iman, whose marriage proposal she refused.  The details of the applicant’s claim have been summarised by the Judge at [4] to [9] of the Judge’s decision (“the CALL-1 Form”)[1].

5.  By a Notice of Decision dated 28 September 2018 (i.e. the Director’s 2^nd Decision), the Director decided against the applicant’s claim. The Director’s 2^nd Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4].

6.  The applicant appealed against the Director’s 2^nd Decision to the Board, for which an oral hearing was held on 6 March 2019 and at which the applicant appeared in person.  The Board found, on the facts and evidence, that the applicant had failed to establish that she would face a real and substantial risk of harm upon return to Indonesia.  In any event, there were suitable options of internal relocation available to her.  The applicant’s appeal was accordingly dismissed by the Board’s decision dated 15 May 2019 (i.e. the Board’s 2^nd Decision).

The Judge’s decision

7.  The applicant filed a Form 86 on 5 June 2019 seeking to judicially review the Board’s 2^nd Decision (but not the Board’s 1^st Decision), but did not set out any grounds for review.

8.  In her supporting affirmation filed on the same date, the applicant merely stated that she had “standing in this matter” and confirmed that what was stated in the Form 86 was to the best of her knowledge, information and belief.

9.  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 [17] and [18] of the CALL-1 Form: 

“17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to Persecution Risk, BOR 2 Risk and BOR 3 Risk grounds; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim wholly on the basis of her case as she asserted. It was on that basis that the Board found her feared ill-treatment is unlikely to materialise; and even if it does, she could safely avoid the risks by internal relocation and it would not be unduly harsh to expect her to do so. Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the three applicable grounds. These are finding of facts and of law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on that basis that the Board further found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the remaining three applicable grounds. This is a mixed question of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

18.     For the above reasons, leave to apply for judicial review of the Board’s Decision is refused.”

Grounds for appeal

10.  In the Notice of Appeal filed on 7 December 2023, the applicant stated that she would “face hardship” if she returned to Indonesia, that the Board relied on “source of news which is not officially recognised” as well as “some cases which are outdated” and which had a “lack of credible source of information”.

11.  In her written submissions dated 7 February 2024, the applicant merely referred to the well-established principles in, inter alia, ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

12.  We heard the appeal on 9 April 2024.  The applicant appeared at the hearing in person, and reiterated (with the assistance of an interpreter) that she was not prepared to return to Indonesia, but otherwise had nothing further to add to the matters already stated in her Notice of Appeal and written submissions.

Discussion

13.  The applicant has in the Notice of Appeal failed to identify 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.

14.  In the application in the court below, the applicant provided no particulars as to any respects in which the Board had acted improperly or unfairly in reaching its 2^nd Decision, or how such Decision could be said to be Wednesbury unreasonable.

15.  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.

16.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the well-known principles referred to in her written submissions had not been applied in the processing of her non-refoulement claim.

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