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

CACV 314/2024, [2024] HKCA1039

On appeal from [2024] HKCFI 1898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 314 OF 2024

(ON APPEAL FROM HCAL NO 1423 OF 2019)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung given on 19 July 2024 refusing leave to the applicant to apply for 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 said decision on 2 August 2024.

Background

2.  The applicant, aged 35, is a national of Indonesia. She last entered Hong Kong to work as a foreign domestic helper on 21 April 2015. Her employment contract was prematurely terminated on 15 August 2015. She did not leave Hong Kong and subsequently overstayed. She was arrested by the police on 2 September 2015. She lodged a non-refoulement claim on 10 November 2015. Her claim was made on the basis that she would be harmed or killed by her parents’ creditor if she returned to Indonesia because she was unable to repay the loan for her parents and she refused to marry the creditor.

The decisions of the Director and the Board

3.  The Director considered 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]. The Director rejected her claim by a Notice of Decision dated 10 May 2018.

4.  The Director found that the absence or low intensity of past ill-treatment from the creditor indicated that he had no real intention to harm the applicant, so that she did not face a real and imminent risk. Her late application for protection was also inconsistent with the behaviour of a person genuinely in fear. The Director was also of the view that (i) state protection would be available to her upon her return; (ii) internal relocation was viable and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk, Persecution risk or Torture risk.

5.  The applicant appealed against the Director’s decision to the Board. The Board was satisfied that the appeal could be justly determined without a hearing so the appeal proceeded accordingly.

6.  The Board was of the view that there was no reliable evidence to show the existence of the loan and the threat. In any event, assuming the applicant was subject to the threat, it was an one-off verbal threat and the applicant never sustained any physical injuries. That rather suggested the creditor merely wanted to exert pressure on her rather than to kill/harm her. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk, or Torture risk. Further, internal relocation was available to her as she was able-bodied and had years of experience working in Taiwan and Hong Kong. She had also received training in two different places in Indonesia. It was not suggested she would not be able to re-establish herself in her home state or elsewhere in Indonesia.

7.  The Board therefore on 17 May 2019 dismissed her appeal and confirmed the Director’s decision.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 27 May 2019 seeking leave to apply for judicial review against the decision of the Board. She did not put forward any grounds for her intended challenge in the Form or the affirmation.

The judge’s decision

9.  DHCJ K W Lung considered the application on paper only as the applicant did not request for an oral hearing.

10.  The judge held there was no reason to interfere with the Board’s decision not to have an oral hearing. Further, given the applicant had not raised any valid ground to challenge the Board’s decision, whether procedural or substantive, the judge concluded there was no realistic prospect of success in the intended judicial review and dismissed the leave application on 19 July 2024.

Grounds of appeal

11.  The applicant stated the following grounds of appeal in her Notice of Appeal:

(1)  The applicant would face hardship if she were to return to her home country.

(2)  The Board made groundless speculations by relying on sources of news which were not officially recognised or were simply hearsay. The Board also relied on cases which were outdated.

Non-compliance with order for lodging of skeleton argument

12.  Directions were given by the Registrar of Civil Appeals on 28 August 2024 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper. The Registrar has also made it clear that the hearing date fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

13.  The appeal was scheduled to be heard on 23 October 2024. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 25 September 2024. As the order of the Registrar was not complied with, the hearing date was vacated pursuant thereto. By letter dated 10 October 2024, the court informed the applicant that the hearing had been vacated and that her appeal would be dealt with on paper only by the Court of Appeal.

Analysis and disposition

14.  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.

15.  The role of the court in an application for leave for judicial review is not to rehear the appeal to the Board or to provide a further avenue of appeal from the Board. The court should not usurp the role of the Board. Assessment of evidence, Country of Origin Information materials, 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, procedural unfairness, irrationality or other public law errors committed by the Board.

16.  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.

17.  The applicant’s grounds in this appeal are just bare assertions without evidence in support. The applicant failed to show the judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  For these reasons, her appeal is devoid of merits and is dismissed accordingly.