RE KANTO

CACV 283/2023, [2026] HKCA 316

On appeal from [2023] HKCFI 2135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 283 OF 2023

(ON APPEAL FROM HCAL 833/2021)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 18 August 2023 refusing to grant leave for 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 31 May 2021 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 December 2019 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  He entered Hong Kong as a visitor on 12 March 2019, but he overstayed, and he surrendered to the Immigration Department on 26 June 2019.  On 4 July and 3 September 2019, he lodged a non-refoulement claim by written representations.  

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditor Jafar, due to his inability to repay a debt.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of the Judge’s decision (“the CALL-1 Form”)[1].   

4.  By a Notice of Decision dated 12 December 2019 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board against the Director’s Decision.  After an oral hearing on 4 December 2020, the Board dismissed the appeal by the Board’s Decision, which covered all applicable grounds for non-refoulement protection.  The Board found that the applicant’s evidence to be inconsistent and incredible, and thus he was unable to establish his fear of harm, which in any event originated from a private dispute without any state involvement.  Moreover, the Board found that adequate state protection and suitable options of internal relocation were available to the applicant to minimise the risk of harm, if any.   

The Judge’s decision

6.  The applicant filed a Form 86 out of time on 7 June 2021, seeking to judicially review the Board’s Decision, without setting out any grounds.  In the applicant’s supporting affirmation, he said that he was afraid to return to his country because he was still not in a position to repay his debt.   

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 the applicant leave to apply for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [10] to [13] of the CALL-1 Form:

“10.   As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.     In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Indonesia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.     In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

13.     For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

Grounds for appeal

8.  In the Notice of Appeal filed on 13 September 2023, the applicant merely claimed that “the High Court did not give [him a] correct decision” and that he wished to challenge it.

9.  In his written submissions lodged on 27 September 2023, the applicant repeated the factual background to his claim and his alleged fears of returning to Indonesia.

10.  The applicant did not request an oral hearing 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.  In his application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.  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.

14.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.