RE SARNIAWATI BT SARIM ABU

CACV 60/2023, [2024] HKCA 960

On Appeal From [2023] HKCFI 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 60 OF 2023

(ON APPEAL FROM HCAL NO 42 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 21 February 2023 ([2023] HKCFI 358) (“the Leave Decision”) refusing her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 4 January 2019 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 January 2018 refusing her non‑refoulement claim (“the Director’s Decision”).

2.  The appeal was listed to be heard on 7 June 2023.  The applicant was directed to lodge two sets of skeleton argument on or before 9 May 2023 and was warned that if she failed to do so, she would be deemed to have waived her right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The directions and the warning were communicated to the applicant by the Notice of Hearing dated 26 April 2023.  However, the applicant did not lodge any skeleton argument in support of her appeal.

3.  As the applicant failed to lodge her skeleton argument by the stipulated time, the applicant was deemed to have waived her right to have an oral hearing and elected to have her appeal disposed of on paper.  The hearing date was thus vacated on 11 May 2023.

4.  Subsequently, this court was notified by the Immigration Department on 13 September 2024 that the applicant had been removed voluntarily back to her home country.

BACKGROUND

5.  The applicant is a national of Indonesia.  She last arrived in Hong Kong as a visitor and was permitted to remain until 12 January 2017.  She did not depart and had overstayed.  On 16 January 2017, she surrendered to the Immigration Department.  On 30 March 2017 and 27 June 2017, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her elder brother Sahiri and his creditor Dedi because Shiri forced her to marry his creditor as repayment of his loan owed to his creditor.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

6.  By the Director’s Decision, the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

7.  The applicant then appealed the Director’s Decision to the Board.  On 5 November 2018, the applicant attended an oral hearing and gave evidence before the Board with the assistance of an interpreter qualified in Bahasa Indonesian and English languages.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Deputy Judge at [9] ‑ [10] of the Leave Decision:

“9. The Board considered her claim before the Director and her evidence at the hearing [5]-[18]. It accepted the core aspects of the applicant’s claim [26]-[32]. However, the Board noted that the dispute was private in nature without state involvement [39]-[40]; and that she never sought the protection from the police and the country of origin information showed that state protection was available [41];[54]. As a result, the Board rejected the applicant’s claim on the ground of Torture risk. Further, the applicant had not lived in Indonesia for the past 6 years and had ceased contact with her brother since 2015. She also had no information as to whether her brother had settled the loan [53]. Meanwhile, internal relocation was not an undue hardship for the applicant [58]-[59].

10. In light of the aforesaid findings, the Board rejected the applicant’s claim on the remaining grounds and dismissed her appeal.”

THE DEPUTY JUDGE’S DECISION

8.  On 7 January 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  She did not provide any ground of review in her Form 86 or supporting affirmation.

9.  As the applicant did not request for an oral hearing, the Deputy Judge considered her application on paper.  On 21 February 2023, the Deputy Judge refused to grant leave to apply for judicial review.  His reasons were stated at [13] ‑ [19] of the Leave Decision:

“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.  There is no valid ground 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.”

THIS APPEAL

10.  On 27 February 2023, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In her Notice of Appeal, she merely stated that she disagreed with the decisions made by the Director, the Board and the court.  She also claimed that her case was not determined fairly.

11.  Contrary to the directions made by the Registrar of Civil Appeals on 24 April 2023 and the directions of this court on 26 April 2023, the applicant failed to lodge any written submissions.

DISCUSSION

12.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

13.  In our view, the applicant’s allegations have no substance. At the outset, all her allegations are new and not raised before the Deputy Judge.  She did not give any reason as to why these grounds were only raised on appeal and not before the Deputy Judge.  It is well established that this court will generally not entertain new arguments which are fact‑and-evidence sensitive and have not been canvassed in the court below and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14] and Re Gurpreet Singh [2021] HKCA 1740 at [15].

14.  Further, the applicant’s complaints are also general and bare assertions without any specific particulars or evidence in support.  More importantly, those complaints are directed mainly at the decisions of the Director and the Board.  Although the applicant disagreed with the Leave Decision, she fails to point out with particulars how the Deputy Judge had erred in the Leave Decision.  They do not constitute proper grounds of appeal.  Her intended appeal must fail on this basis alone.

15.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.

16.  On 13 September 2024, the court was notified by the Director that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.