SRI SETIYANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 572/2024, [2025] HKCA 501

On Appeal from [2024] HKCFI 3340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 572 OF 2024

(ON APPEAL FROM HCAL NO 2210 OF 2019)

________________________

_____________________

_______________

J U D G M E N T

_______________

Hon Cheng J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 17 December 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petitioner Office (“the Board”) dated 13 December 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 2 September 2016.

BACKGROUND

2.  The Applicant is a national of Indonesia. She first arrived in Hong Kong to work as a foreign domestic helper in 2002. Her last employment contract was prematurely terminated on 25 March 2008. She has been overstaying since 11 April 2008. She raised a torture claim[1] on 20 January 2010[2]. Out of a relationship with a Sri Lankan man, she gave birth to a daughter and a son in Hong Kong on 3 February 2009 and 29 December 2010 respectively. After the birth of her two children, she included them in her torture claim. She was married to the Sri Lankan man on 27 May 2011.

3.  On 20 May 2012, the Director rejected the torture claim of the Applicant and her children. On 20 December 2012, the Board refused to extend time for the Applicant and her children to appeal against the Director’s rejection of their torture claim.

4.  On 19 March 2013, the Applicant lodged non-refoulement claims for herself and on behalf of her two children, which were assessed on the applicable grounds other than the risk of torture. The Applicant’s claim was that, if refouled, she would be harmed or killed by Rehman Wijaya (“RW”) and her parental family because she failed to marry RW as arranged by her family, but married a Sri Lankan man in Hong Kong without her family’s consent. She also claimed that she and her children might experience discrimination as a result of her mixed marriage and parentage with a Sri Lankan upon their refoulement. Details of the Applicant’s claim were summarised by the Judge at §§5-7 of his Judgment dated 17 December 2024 (“the Judgment”).

5.  By a Notice of Decision dated 2 September 2016 (“the Director’s Decision”), the Director dismissed the non-refoulement claims of the Applicant and her two children with reference to the following risks: BOR 3 risk[3], and persecution risk[4].

6.  By a Notice of Further Decision dated 7 August 2017, the Director dismissed their non-refoulement claims with reference to BOR 2 risk[5].

7.  The Applicant appealed the Director’s Decision to the Board for herself and on behalf of her two children. On 13 December 2018, the Board dismissed their appeal, and affirmed the two decisions of the Director (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §12 of his Judgment as follows:

“Having considered the evidence, the Board dismiss their appeal upon the findings below:

‘45. I am sorry to have to say that the [Applicant] completely failed to provide what might be regarded as even minimally detailed, coherent or cogent evidence about the central elements of her claim. She also failed to demonstrate even the most basic or superficial of her claim to support her vague assertions with information reasonably at her disposal. For the reasons I set out in more detail below, therefore, I find her account as to the circumstances in Indonesia is entirely unreliable.

64. … in my judgment, that this [Applicant] is not a witness of truth and that she has failed to establish even a reasonable likelihood that her claims are true. I find no credence whatever can be given to any of her assertions as to the circumstances in Indonesia and I reject those claims.

71. … the first [Applicant] is not facing the prospect of return to Indonesia as a single mother, her children will not be treated as illegitimate as deprived of Indonesian nationality and her husband is likely to benefit from legal status as a spouse.

75. On that basis, on the evidence before me, I conclude the [Applicant and her children] face no real risk of forms of discrimination as a result of their mixed ethnicity of nationality upon travel to Indonesia.’ ”

THE JUDGE’S JUDGMENT

8.  On 2 August 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision, naming only herself but not her two children as applicants. The Applicant’s grounds of intended challenge, as raised in her supporting affirmation of the same date, were summarised by the Judge at §14 of the Judgment as follows:

“(1) The Board was wrong not to accept her evidence that it would be dangerous for them to return to Indonesia.

(2) The Board had not heeded the international obligation of taking care of the children’s interest.

(3) On those bases, the Board’s Decision is Wednesbury unreasonable.”

9.  The Judge scheduled an oral hearing for the leave application on 4 November 2024 for the purpose of clarifying why the two children had not been named in the application, but the Applicant failed to attend the hearing. On 17 December 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] As mentioned in paragraph 2, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the [Applicant’s] case.

[16] 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…

[17] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny…

…

[19] For the reasons given, the Board rejected her evidence in support of her claim. This is a matter of the credibility of her evidence, which is squarely within the province of the Board. Those grounds under paragraph 6 are her bare assertions without any evidence in support. All of the grounds are not valid to challenge the Board’s Decision.

[20] I find that the [Applicant] has failed to show that there is realistic prospect in her intended application.”

THIS APPEAL

10.  In her Notice of Appeal filed on 30 December 2024, the Applicant stated that she did not agree with the Judge’s decision and wanted to appeal. Her ground of appeal was that she did not attend the hearing before the Judge because she did not receive any letter from the High Court regarding a hearing.

11.  Since the Applicant’s children are not parties to the leave application or to the present appeal, it is not necessary to consider the children’s non-refoulement claims in the present appeal.

12.  In her 2-page written submissions lodged on 14 April 2025, the Applicant essentially repeated the factual basis of her claim.

13.  At the hearing of the present appeal, the Applicant stated that she had intended to seek leave to apply for judicial review on behalf of her children, but had only realised when re-checking the Form 86 that her name, but not her children’s, had been included in the application. It was explained to the Applicant that the Judgment and the current appeal concerned only the Applicant and that if her two children sought to obtain leave to apply for judicial review of the Board’s Decision, they would have to do so through a next friend, and by a solicitor.

14.  In respect of her own appeal, the Applicant stated that she did not have any update to provide as regards her family in Indonesia as she had lost contact with them.

DISCUSSION

15.  Under Order 53, Rule 4 of the Rules of High Court, Cap 4A, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

16.  As pointed out by the Judge, there was a delay of over 4.5 months by the Applicant in seeking leave to apply for judicial review in the present case. We consider the delay was substantial, but the Applicant has not offered any explanation for such delay.

17.  As for the merits of the appeal, the Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

18.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022.

19.  The matters stated in the Notice of Appeal and the Applicant’s written submissions plainly do not constitute any valid grounds of appeal against the Judgment. As regards the Applicant’s explanation for being absent from the hearing before the Judge, this cannot be a good ground of appeal. First of all, we would note that the court records show that the notice of hearing dated 15 October 2024 was in fact mailed to the correct address (being materially identical to, and fuller than, that provided by the Applicant in her notice of change of address dated 17 August 2020, and her letter to the court dated 6 November 2024). However, the notice of hearing was returned to the court on 7 November 2024 because the address was said to be incomplete.

20.  Whilst it is true that the Applicant did not attend the hearing, we would note that:

20.1.  an application for leave to apply for judicial review can be determined without a hearing: RHC O.53 r.3(3). In the present case, the Judge fixed a hearing to clarify why the Applicant’s children had not been named in the Form 86, and not for the Applicant’s own application. Nor had the Applicant requested an oral hearing;

20.2.  the Judge did not simply dismiss the Applicant’s application, but proceeded to consider it on its merits. It is not suggested that the Judge overlooked any matter by reason of the Applicant’s absence from the hearing.

21.  As regards the Applicant’s written submissions, these merely repeated an account of how the Applicant came to be in Hong Kong and the reason why she did not return to Indonesia. We have noted above that the assessment of evidence is primarily a matter for the Director and the Board. No error of law or procedural unfairness or irrationality has been identified in the present case.

22.  The Applicant has failed to identify or show any error in the Judgment refusing to extend time for her to apply for leave to apply for judicial review, or grant leave to apply for judicial review.

23.  The Applicant’s appeal against the Order has no merit, and is dismissed.