ENDANG SUSILOWATI SAMUJI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 555 /2019

[2020] HKCA 381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 555 OF 2019

(ON APPEAL FROM HCAL NO 2520 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicants’ appeal against the decision of Deputy High Court Judge K W Lung on 21 November 2019^[1]. By his decision, the judge refused to grant leave to the applicants to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims. This appeal is dealt with on paper due to the non-compliance of an unless order as mentioned below.

2.  The 1^st applicant is an Indonesian woman of 44 years old. She had worked as a domestic helper in Hong Kong since 1994.  She returned to Indonesia after the completion of her contract in 2001.  She came to Hong Kong again in 2003 to work as a domestic helper.  She overstayed from October 2009 and was arrested by the police on 27 December 2009.  On 16 August 2010, the 1^st applicant gave birth to her daughter, the 2^nd applicant in these proceedings.

3.  The applicants had previously lodged their torture claims, the appeal of which was rejected on 26 November 2012.  The 1^st applicant lodged a non-refoulement claim for herself which was received by the Director on 20 February 2014 and she also raised a non-refoulement claim for her daughter on 17 March 2015.  Their claims were made on the basis that they will be harmed or killed by the 1^st applicant’s father if they return to Indonesia because the 1^st applicant has converted from Christianity to Islam and the 2^nd applicant was born out of wedlock.

The Director’s decision

4.  Since the applicants’ torture claims had already been rejected on appeal, the refusal decision of their torture claims would not be reviewed under the Unified Screening Mechanism.  The Director considered their non-refoulement claims on the grounds of BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4]. 

5.  The Director considered that the 1^st applicant’s father does not have real intention to cause the applicants serious harm or to kill them upon their return to Indonesia and the absence of any real ill-treatment from the 1^st applicant’s father in the past is an indication of the low future risk of harm.  Besides, the Director assessed that their problem is localized and they will not face any real and substantial risk of being ill-treated as reasonable state protection and internal relocation alternatives are available to them in Indonesia.  Thus, the Director rejected their non-refoulement applications by a Notice of Decision dated 16 April 2018. 

The Board’s decision

6.  The applicants appealed to the Board against the Director’s decision on 30 April 2018.   An oral hearing was held on 15 August 2018.  The Board found that the applicants were unable to establish their claims as there was no evidence to show any severe ill-treatment and serious harm, they could not establish any likelihood of risk to life, state protection is available and internal relocation is viable.  Therefore, the appeal was rejected by the Board on 12 September 2018. 

The intended judicial review

7.  The 1^st applicant filed a Form 86 and an affirmation on 9 November 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  Leave was granted by DHCJ Lung on 9 May 2019 to add the 1^st applicant’s daughter as the 2^nd applicant in the application.

The judge’s decision

8.  The applicants appeared at the hearing before the judge on 9 May 2019.  The judge dismissed the application for leave to apply for judicial review of the Director’s decision as they had appealed against that decision to the Board and the Board’s decision on appeal superseded the decision of the Director.  The 1^st applicant confirmed before the judge she was able to speak freely and tell her story fully to the immigration officer and the adjudicator and she had no comments on the Board’s findings.  The judge held that the applicants have no reasonable prospect of success in their proposed judicial review and dismissed the leave application on 21 November 2019.

The grounds of appeal

9.  The applicants filed a Notice of Appeal on 4 December 2019 against the judge’s decision.   It was stated as their grounds of appeal that they would like to review the decision of the Board as the Board disregarded their dangerous situation.

Non-compliance of unless order

10.  Directions were given by the Registrar of Civil Appeals on 20 January 2020 for the applicants to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicants fail to lodge a skeleton argument in accordance with the directions, they shall be deemed to waive their right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

11.  The appeal was scheduled to be heard on 27 May 2020 and the deadline for the applicants to comply with the Registrar’s directions to lodge a skeleton argument was extended to 8 May 2020 by Kwan VP on 17 April 2020.

12.  The applicants failed to lodge a skeleton argument on or before 8 May 2020.  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By letter dated 15 May 2020, the court informed the applicants that the hearing date of 27 May 2020 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  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. Assessment of evidence and country of origin information 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.

15.  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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

16.  In the present appeal, the applicants have not raised any viable ground to reverse the judge’s decision.  They failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

17.  As there is no merit in the appeal and no realistic prospect of success in the intended application for judicial review, we dismiss the appeal accordingly.