ENDANG-SUSILAWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 38/2025, [2025] HKCA 944

On Appeal From [2025] HKCFI 246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 38 OF 2025

(ON APPEAL FROM HCAL NO 1378 OF 2024)

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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 28 January 2025[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 24 July 2024.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 8 May 2024 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia born in 1985.  She last arrived in Hong Kong on 31 December 2020 with permission to remain as a foreign domestic helper until 22 December 2022, but her employment contract was prematurely terminated on 30 April 2022.  The applicant had overstayed since 15 May 2022 and was subsequently arrested by the Immigration Department and the police in a joint operation on 11 March 2024.  On 20 March 2024, she submitted a written signification indicating her intention to lodge a non-refoulement claim in Hong Kong.  The applicant’s claim was made on the basis that if she returned to Indonesia, her creditor (Dedik Supriyadi)  would harm or kill her due to her inability to repay her debt.  The factual background of the applicant’s claim was set out at [8] of the Board’s decision.

3.  By notice of decision dated 8 May 2024, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5].

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 11 July 2024, during which the applicant gave evidence and answered questions from the Board.  The Board found that the applicant’s evidence as to her loan arrangement was simply incredible and unreliable, because she did not provide any proof in support and she did not have basic knowledge about her loan or the creditor.  It further found that the accounts of events in her written significance, answers given at her screening interview and answers given at the appeal hearing were inconsistent.

5.  Despite the finding that the applicant’s allegations were not credible, the Board nevertheless proceeded to consider the risk of harm faced by the applicant if she was refouled to Indonesia.  It found that there was in fact no real risk of harm if she returned to Indonesia, because the applicant’s alleged risk of harm did not reach a minimum level of severity, the risk of harm was localized, the creditor was not a state actor, the dispute was a private matter, and reasonable state protection would be available to the applicant.  Although the Board considered that it would not be necessary to consider the issue of internal relocation, it nonetheless considered that internal relocation to Medan or Makassar would be a viable option for the applicant.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Indonesia.  By its written decision dated 24 July 2024, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 20 August 2024, 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.  She did not specify any ground for judicial review in the Form 86 or in her supporting affirmation.  In the latter, she simply stated that her life would be in danger and annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 28 January 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [17] of the written judgment as follows:

“ 13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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 Decision 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 applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Court has no reason to interfere with it.

17.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

Appeal to this Court

9.  On 3 February 2025, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that the Judge did not consider her judicial review and that the Board did not give a correct decision. 

10.  On 27 March 2025, the applicant sent a letter to the court stating that she wished to “close” her case and to return to her home country as it was safe to return.  By way of the court’s letter dated 8 April 2025, the applicant was notified of the Judge’s direction on 3 April 2025 stating that as the applicant’s application had been dismissed on 28 January 2025, this application would not be entertained.

11.  The applicant’s appeal was initially fixed to be heard by this Court on 2 July 2025.  On 24 June 2025, the court was notified by the Director that the applicant had been removed from Hong Kong on 30 April 2025.  As the applicant had already left Hong Kong and she had not lodged any written submissions, the scheduled hearing of her appeal was vacated pursuant to the directions of the Court.

12.  Accordingly, we determine this appeal on the basis of the written materials available.  We will send a copy of this judgment and the sealed order to the Director and request that he use his best endeavours to forward them to the applicant.

Discussion

13.  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’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.

14.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the Board found that the applicant’s allegations incredible and that in any event even on her own case the applicant’s alleged risk of harm did not reach a minimum level of severity, the risk of harm was localized, the creditor was not a state actor, the dispute was a private matter, reasonable state protection would be available, and internal relocation to Medan or Makassar would be a viable option for the applicant.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

15.  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.

16.  The applicant’s appeal is accordingly dismissed.