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

CACV 264/2024, [2025] HKCA 170

On Appeal From [2024] HKCFI 686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 264 OF 2024

(ON APPEAL FROM HCAL NO 3726 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 14 March 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 22 November 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 16 April 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant, aged 45, is a national of Indonesia. She last entered Hong Kong on 31 July 2007 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 1 September 2008 and she had overstayed since 8 December 2008. The applicant was arrested by the police for overstaying on 28 March 2012 and was sentenced to 12 weeks’ imprisonment on 3 April 2012.

3.  The applicant lodged her torture claim under Part VIIC of the Immigration Ordinance (“the Ordinance”) on 4 June 2012, but it was rejected by the Director on 24 May 2013. On 23 July 2013, the Applicant made a non-refoulement claim on all applicable grounds other than Torture risk[2]. The claim was made on the basis that, if refouled, she would be forced to marry her creditor because she had not settled her debt. She also feared that her father would beat her up and even kill her because her parents disapproved of her marrying a Bangladeshi in Hong Kong. The factual background of the applicant’s claim was set out at [15] to [32] of the Board’s decision.

4.  The applicant’s non-refoulement claim was assessed by the Director with reference to all relevant risks other than Torture risk, namely BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5]. By notice of decision dated 16 April 2018, the Director rejected the applicant’s claim.

5.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 29 January 2019, during which the applicant gave evidence and answered questions from the Board. In its decision dated 22 November 2019, the Board dismissed the appeal and affirmed the decision of the Director. The Board found that the applicant was not a witness of truth. It did not accept her claims that there were loans taken out from the creditor and that the applicant was forced to marry him due to non-repayment of loans. It was also not accepted that she would be harmed by her father for marrying a Bangladeshi in Hong Kong. As such, the Board found that the applicant faced no real risk of harm upon return to Indonesia and dismissed her appeal.

The Judge’s decision in the court below

6.  On 16 December 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. In the accompanying affirmation, she made bare assertions that there had been unfairness and unreasonableness in the decisions against her. She also denied the availability of state protection and internal relocation.

7.  An oral hearing was held on 11 December 2023, during which the applicant told the Judge that she did not consider the decision of the Board was wrong. On 14 March 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [16] to [20] of the Form CALL-1 as follows:

“ 16. 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).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that she was free to speak before the Board. She agreed that the Board was not wrong in its decision.

18. 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.’

19. As the applicant agrees that the Board was not wrong in its decision, the grounds raised by her in paragraph 15 are irrelevant for argument.

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

Appeal to this Court

8.  Because of a change of address, the Judge’s decision only eventually reached the applicant by letter dated 19 June 2024. On 2 July 2024, the applicant filed her Notice of Appeal against the Judge’s decision. Apart from adding that she had a kidney problem, her stated grounds of appeal were essentially the same as those mentioned in paragraph 6 above.

9.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 2 July 2024. As she has given consent in writing for this appeal to be disposed of on paper without an oral hearing, we shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

10.  In assessing the merits of the appeal, we shall 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 a 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, 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.

11.  In the present case, the Board found that the applicant faced no real risk of harm upon return to Indonesia because it did not accept that (i) there were loans taken out from the creditor; (ii) she was forced to marry the creditor due to non-repayment of loans; or (iii) she would be harmed by her father because of her marriage in Hong Kong. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.

12.  The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision. As for her grounds of appeal, they were mere general and bald assertions without any particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

13.  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.

14.  The applicant’s appeal is accordingly dismissed.