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

CACV 233/2024, [2025] HKCA 346

On appeal from [2024] HKCFI 1337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 233 OF 2024

(ON APPEAL FROM HCAL NO 283 OF 2024)

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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.  On 30 May 2024, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the decision on 11 June 2024.

Background

2.  The applicant is a national of Indonesia. She last arrived in Hong Kong on 25 April 2019 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 25 May 2019. She subsequently overstayed and surrendered to the Immigration Department on 18 November 2020. She made a non-refoulement claim on 30 December 2020 on the basis that, if refouled, she would be harmed or killed by her mother because of her sexual orientation.

The decision of the Director

3.  By a Notice of Decision dated 7 January 2022, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director found there is nothing to show that the applicant’s mother had a real and strong intention to harm or kill the applicant. As her mother only made verbal threat against her and nothing eventful happened when she stayed in her friend’s house in Tangerang when she returned to Indonesia in 2019, the Director held that the claimed threat is only localized, if any. The Director had also considered the laws and practices in relation to gender-based violence in Indonesia and assessed that reasonable state protection will be available to the applicant in Indonesia. The Director further found that internal relocation options are available to the applicant in Indonesia, which further lower or negate any perceived risk.

The decision of the Board

5.  The applicant attended the hearing of the appeal against the Director’s decision before the Board on 3 October 2023. The Board found that the applicant’s account of the disclosure of her relationship with her female partner and the death threat from her mother is not credible. The Board also held that relocation to another part of Jakarta would be a safe and viable alternative to the applicant. The Board concluded there is no real risk that the applicant would be killed or otherwise harmed by her mother if she returns to Indonesia. Thus, the Board held that the appeal fails on all applicable grounds and dismissed the appeal on 18 October 2023.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 6 February 2024 to seek leave to apply for judicial review against the decision of the Board. The leave application was made out of time. She submitted “self written grounds” in her affirmation, part of it was in the Indonesian language.

The judge’s decision

7.  The applicant attended the hearing before DHCJ K W Lung on 15 April 2024. She was late for more than 2 weeks in filing the leave application and did not provide any explanation for the delay. At the hearing, she submitted that she did not consider that the Board was wrong. The judge found that the applicant failed to raise any valid ground to challenge the Board’s decision and there is no reason for the court to interfere with the Board’s findings. As there is no realistic prospect of success in the proposed judicial review, the judge refused to grant extension of time for the applicant to apply for leave to bring judicial review and dismissed the application on 30 May 2024.

Grounds of appeal

8.  The applicant lodged her written submissions written in Indonesian, translation of which was obtained by the court from court interpretation services. In her Notice of Appeal and written submissions, the applicant only reiterated the problems she faced in Indonesia, in particular, the threat from her parents, without putting forward any specific grounds against the judge’s decision.

9.  The applicant has submitted a written consent to the appeal to be disposed of on paper without an oral hearing.

Legal principles

10.  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.

11.  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 issue at hand, the court should not usurp the role of 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.

12.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

Analysis and disposition

13.  The Board has already assessed that the applicant’s account of her claims is not credible and that it would be safe for her to relocate to another part of Jakarta. The applicant did not adduce any evidence to refute the Board’s findings, and confirmed at the hearing before the judge that she did not consider the Board was wrong.

14.  It is not entirely clear whether the judge had considered the “self written grounds” in the applicant’s affirmation written partly in Indonesian, as he mentioned in his decision[6] that the applicant “did not raise any specific ground in support of her application”. This is of little moment. We have considered the “self written grounds” and nothing written there raised any valid ground for the court to interfere with the findings of fact of the Board or its decision. So the judge’s statement is correct in the sense that the applicant did not raise any specific ground to challenge the Board’s decision. Other than the above, there is no identifiable error in the judge’s decision.

15.  For the above reasons, the applicant’s appeal is devoid of merit and is dismissed accordingly.