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CACV 57/2022
[2023] HKCA 136
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 57 OF 2022
(ON APPEAL FROM HCAL NO 2079 OF 2018)
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| BETWEEN |
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SUTRISNOWATI BINTI ALI |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/ NON-
REFOULEMNT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
____________________
| Before: |
Hon Yuen and Chow JJA in Court |
| Date of Written Submissions: |
7 February 2022 |
| Date of Judgment: |
10 February 2023 |
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J U D G M E N T
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Hon Yuen JA (giving the Judgment of the Court):
Introduction
1. On 21 January 2022, DHCJ K.W. Lung (“the Judge”) refused 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 (“the Board”) dated 24 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 13 February 2018 rejecting the applicant’s non-refoulement claim on all applicable grounds.
2. On 31 January 2022, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, a letter was lodged with the Court expressing the applicant’s consent to have this appeal disposed of on paper without an oral hearing.
3. In compliance with the directions of Registrar of Civil Appeals made on 31 January 2022, the applicant lodged her written submissions on 7 February 2022.
4. As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.
Background
5. The applicant is a national of Indonesia. She last entered Hong Kong in May 2014 as a foreign domestic helper. Her employment contract was terminated prematurely. She did not leave upon the expiry of her visa and overstayed. She was arrested by the police on 17 May 2015 for soliciting for an immoral purpose and taking up unapproved employment. She raised a non-refoulement claim on 26 May 2015 and 1 June 2015 alleging that if refouled, she would be harmed or killed by her husband and a loan shark. The factual background of this case was succinctly summarized by the Judge in [5] of the Form CALL-1 ([2022] HKCFI 244).
6. By a Notice of Decision dated 13 February 2018, the Director assessed the applicant’s claim on grounds relating to BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against her.
7. The applicant appealed the Director’s decision to the Board. She attended an oral hearing on 30 July 2018, and by its decision dated 24 September 2018, the Board dismissed the appeal. For the reasons set out at [35] – [85], the Board found that even if the applicant’s case was put to the highest, she was not a party to her husband’s loan, and apart from verbal threats, the loan shark did not take any action to harm the applicant’s family. As the applicant has separated from her husband since 2005, with no intention of having any future contact with him, and her husband has re-married, there were no substantial grounds for believing that the applicant would face a real risk of harm from the loan shark and her husband if refouled. Further, the dispute was private and personal in nature without any state involvement. In any event, relevant country of origin information (“COI”) suggested that there is reasonable state protection and internal relocation is a viable option. For the aforesaid reasons, the Board rejected her non-refoulement claim on all applicable grounds.
Decision of the court below
8. On 2 October 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Director’s decision. She did not advance any ground of relief in her summons or supporting affirmation save for complaining that the Director had disregarded her dangerous situation.
9. Before dealing with the applicant’s application, as the Director’s decision is not susceptible to judicial review once an appeal to the Board is pursued by a claimant, see: Re Moshsin Ali CACV 54/2018, [2018] HKCA 549, the Judge ordered the Form 86 be amended to the effect that the Board be the proposed respondent and the Director as the interested party pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC.[5]
10. The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [12] – [17] of the JR Decision:
“DISCUSSION
12. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
14. 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.”
15. The applicant has not been able to raise any valid challenge against the Board’s Decision.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”
Appeal to this Court
11. On 31 January 2022, the applicant filed her Notice of Appeal on the following ground:
“I, Sutrisnowati Binti Ali, filed for the appeal over my case and the situation in Indonesia that constitutes to an error of judgment. I will be in grave danger if I should return to my home country. My husband should be harmed or killed me.
I believe that my possible loss of life should be is a myth [sic], when I returned back home.
As a result, I request the court to grant leave to appeal.”
12. In her written submissions, she presented 8 grounds of appeal but they are largely the applicant’s comments and assertions about the general situation regarding illegal lending activities and human rights problems in Indonesia. She complained that the Board’s and the Judge’s decisions were erroneous and overlooked the fact that she would face a risk of harm from the loan shark and her husband if she were refouled. She disagreed that the Indonesian government would protect her and the possibility of internal relocation is also “a myth”.
Legal principles
13. In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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]. For the purposes of this appeal, the salient principles are as follows:
(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 on appeal, which operates as a re-hearing, 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 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. 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.
(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, or for running arguments which could and should have been raised but not raised before the judge. In the determination of 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 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. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.
Discussion
14. Apart from the applicant’s general complaint that the Judge had failed to identify her dangerous situation if refouled, she failed to pinpoint or identify any arguable error of law by the Judge, or any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters. General assertions of fear if refouled do not constitute proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].
15. Assessment of evidence and risk is within the province of the Board. It was the Board’s finding that even if the applicant’s case is put to the highest, the loan shark did not take any action to harm her and her family, and as she had separated from her husband since 2005 who has re-married, the Board did not find any substantial grounds to believe that she would face any real risk of harm if refouled, and in any event, internal relocation was viable. The Judge is plainly right to find that the Board’s findings are free of error and not open to challenge as Wednesbury unreasonable or irrational.
16. Having considered the materials before us, we are of the view that the Judge’s observations are fully justified. We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.
Order
17. For the above reasons, this appeal is dismissed.
(Maria Yuen)
Justice of Appeal |
(Anderson Chow)
Justice of Appeal |
The applicant, unrepresented, acting in person
[1] This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[3] This refers to risk of torture as defined in Part VIIC of the Immigration Ordinance (Cap.115); the definition being the same as that found in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] The Judge’s decision at [3]
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