RE MUTMAINAH

CACV 523/2021

[2022] HKCA 526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 523 OF 2021

(ON APPEAL FROM HCAL NO. 90 OF 2019)

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J U D G M E N T

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

I.  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) dated 27 December 2018. 

2.  Pursuant to the directions of the Registrar of Civil Appeals on 6 December 2021, the applicant has filed her written submissions on 8 December 2021.  The applicant agreed to have the appeal disposed of on paper without an oral hearing.

II.  Factual background

3.  The applicant is a national of Indonesia.  She arrived in Hong Kong on 20 March 2015 to work as a foreign domestic helper.  Her employment was prematurely terminated on 11 November 2015.  She did not depart and was arrested on 12 June 2016 for overstaying.  She raised a non-refoulement claim thereafter on the basis that she would be harmed or killed by her father’s creditors over his outstanding debts.

4.  The details of the applicant’s claim have been summarized by the Judge at [1]-[3] of the CALL‑1 Form.

III.  The Director’s Decision

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 8 February 2018.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as her other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 20 February 2018 and attended an oral hearing on 30 November 2018 before the Board.  The Board dismissed the applicant’s appeal against the Director’s Decision on 27 December 2018.

7.  Whilst the Board accept the applicant’s claim that threats in respect of her father’s creditors may be true, there was no evidence to suggest this would directly affect the applicant after all these years since her departure from her home village.   In any event, it was a private matter and it was not unreasonable for the applicant to relocate elsewhere in Indonesia.  The Board did not accept the applicant’s claim for non-refoulement and dismissed her appeal on all applicable grounds.

V.  Decisions of the Judge

8.  The applicant filed a Form 86 on 10 January 2019 with a supporting affirmation.  In her supporting affirmation, she appears to have copied from some proforma used often in these applications but without any relevancy to her claim as commented by the Judge.

9.  The Judge further considered the merits of the application and found that the applicant’s assertions were neither elaborated nor presented with any relevancy or particulars in support of her claim.  The Judge found there was no error of law or procedural unfairness in either of the decisions of the Director or the Board, nor any failure on their part to apply high standards of fairness in the consideration and assessment of the applicant’s claim.  Therefore, the application was dismissed.   

VI.  Grounds of Appeal

10.  The applicant stated in her written submissions that she does not wish to return to Indonesia as her life is threatened there.  She also complained that her claim for non-refoulement was not properly screened by the Director and repeated that her claim was true, notwithstanding that the Board had, in fact, accepted her claim insofar as the debt of her father is concerned.

VII.   Our view

11.  We will repeat the approach of this Court in dealing with cases of this nature :

1)  The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board.  Though in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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 their decisions.

2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge. In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was, otherwise, plainly wrong.

3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

12.  In our view, there is simply no merit in the applicant’s appeal.  The Judge had provided his reasons of refusal in his decision.  There is no error in the Judge’s decision.  Accordingly, the appeal is dismissed.