RE LILIS JUNIYANTI

CACV 23/2021

[2021] HKCA 959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 23 OF 2021

(ON APPEAL FROM HCAL NO. 2974 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Patrick Li (“the Judge”)  given on 13 January 2021 refusing her leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”)  dated 22 January 2018 rejecting her non-refoulement claim against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”)  dated 17 December 2018 dismissing her appeal against the Director’s decision.    

2.  The applicant has consented to her appeal being determined on the papers without an oral hearing.

3.  The applicant is an Indonesian national aged 41.  She first entered Hong Kong in 2003 to work as a domestic helper.  After her employment contract was terminated in October 2016, she overstayed.  In January 2017, she surrendered to the Immigration Department and lodged a non-refoulement claim. 

4.  The applicant’s claim is based on her fear of being harmed or killed by a loan shark because she failed to repay loans she borrowed on her husband’s behalf.  The applicant’s case was set out in detail in the Director’s decision and also the Board’s decision, and summarised by the Judge in [5] to [15] of the Form CALL-1 dated 13 January 2021 ([2021] HKCFI 84).  We will not repeat it.

5.  By a Notice of Decision dated 22 January 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4] grounds.   

6.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 27 July 2018, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 17 December 2018, the Board dismissed the appeal.  In short, while the Board considered the applicant had exaggerated her claim, it is prepared to accept that she had borrowed a substantial sum of money which she cannot repay, and she is afraid of the moneylender.  The Board also found her case about her husband absconded with her money, and the loss of her family home to be genuine.  The Board, however, considered that internal relocation and state protection are reasonably available, and there is no real risk of the applicant facing any of the prescribed forms of harm if she were to return to her country.  The Board concluded that she failed to substantiate her non-refoulement claim under all applicable grounds.          

7.  The applicant filed a Form 86 together with a supporting affirmation on 24 December 2018 to seek leave to apply for judicial review against both the decisions of the Director and the Board.  In both documents, she did not set out any ground for seeking relief.    

8.  By his decision of 13 January 2021, the Judge refused to give leave to apply for judicial review.  The Judge had examined the decisions of the Director and the Board, which he summarised in [16] to [24] of the Form CALL-1.  He concluded that there was no error of law or procedural unfairness, and the intended judicial review was unarguable and had no reasonable prospect of success.

9.  The applicant filed a Notice of Appeal on 25 January 2021 to appeal the Judge’s decision.  Other than stating that the applicant’s dangerous situation had been disregard, it did not set out any ground of appeal. 

10.  The applicant has lodged a written submission in which she raised the following arguments:

(1)  She would be in grave danger if she returned to Indonesia.  The Board was misguided when it thought rule of law would be practised in Indonesia.

(2)  The Board was wrong to think her problem was a personal one.  The Indonesian police also thought it was a private issue.  Hence, she would not receive protection from the police.

(3)  Her problem was not a private problem. The police in Indonesia fails to uphold human rights standard.

(4)  The Board did not consider her case in the context of Indonesia.  It selectively quoted from sources of information to fit its purpose.  

11.  The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below.  The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)].

12.  It is also established law that assessment of risk of harm and country of origin information is a matter for the Director and the Board, who are the primary decision makers.  The Court will not interfere with their decisions unless there are errors of law, irrationality or procedural unfairness. 

13.  Despite the fact that the applicant did not put forward any ground in support of her application for judicial review, the Judge had carefully examined the decisions and reasons given by the Director and the Board.  He concluded there was no basis to disturb them.  In this appeal, the applicant has not identified any error in the Judge’s decision.  The arguments in her written submission are directed at the decisions of the Director and the Board.  However, in the absence of any error of law, irrationality or procedural unfairness, it is not open to the Court to disturb the decisions of the Director and the Board.  We have considered the Board’s and the Director’s decisions and reasons.  We agree with the Judge that there is no proper basis to interfere with the decisions.

14.  For the above reasons, the appeal is unarguable. Accordingly, we dismiss the appeal.