|
CACV 258/2023, [2025] HKCA 474
On appeal from [2023] HKCFI 1831
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 258 OF 2023
(ON APPEAL FROM HCAL 1009/2019)
________________________
________________________
| Before: |
Hon Barma JA and G Lam JA in Court |
| Date of Judgment: |
30 May 2025 |
________________________
J U D G M E N T
________________________
Hon Barma JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 25 July 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 22 March 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 January 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Indonesia. She entered Hong Kong on 5 November 2010 as a foreign domestic helper, but she did not depart after the premature termination of her employment. In the meantime, she lodged a torture claim which was treated as withdrawn on 28 January 2013. Thereafter, she lodged a non-refoulement claim made by way of written representations dated 24 March 2014. The applicant was subsequently transferred to the Immigration Department on 5 July 2014.
3. The applicant’s claim was based on a fear of being harmed or killed by a loan shark, Mulyono. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 18 January 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered all applicable grounds other than the torture risk[2], i.e. the BOR 2 risk[3], the BOR 3 risk[4], the persecution risk[5].
5. The applicant appealed to the Board. After a hearing on 14 January 2019, the Board dismissed the appeal on 22 March 2019 by the Board’s Decision. The Board’s Decision covered all grounds for non-refoulement protection other than the torture risk. The Board found that the applicant was not a credible witness, and gave incredible evidence on material aspects of her claim, having regard to the inconsistencies in her evidence.
The Judge’s decision
6. The applicant filed a Form 86 on 12 April 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review. In the applicant’s supporting affidavit, she repeated the dangers allegedly faced by her upon her return to Indonesia.
7. After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:
“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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
15. 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.’
16. The grounds in paragraph 12, supra are not valid to challenge the Board’s Decision.
17. 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.
18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
19. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
Grounds for appeal
8. In the Notice of Appeal dated 16 August 2023, the applicant did not set out any grounds of appeal, but merely stated that she was dissatisfied with the Judge’s decision.
9. In breach of the directions made by the Registrar of Civil Appeals, the applicant lodged her written submissions late (by 5 days) on 5 September 2023. Given the relatively short delay, we have considered the same, in which the applicant merely repeated the perceived dangers she allegedly faced should she be refouled, as well as complaints against the Board without providing particulars (e.g. simply referring to the “many [errors]” allegedly made by the Board). She also complained that she was not given an oral hearing. However, as she did not request a hearing in her Form 86, the Judge was entitled to dispose of the application on paper, as he did.
10. The applicant also did not request an oral hearing for this appeal and consented to the appeal being disposed of on paper by the court. We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.
Discussion
11. The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening. The applicant has wholly failed to do so.
12. As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. The Judge considered the decisions of both the Director and the Board and found no basis for intervening. In our view, he was clearly correct to do so.
13. As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.
14. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Aarif Barma) |
(Godfrey Lam) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] [2023] HKCFI 1831
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] 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.
[5] 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.
|