RE KERI

CACV 483/2024, [2025] HKCA 318

On appeal from [2024] HKCFI 3009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 483 OF 2024

(ON APPEAL FROM HCAL NO. 2151 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Chu VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”)  given on 15 November 2024[1] refusing leave to the applicant to apply for judicial review against the decision dated 23 July 2019 of the Torture Claims Appeal Board (“the Board”)  dismissing the applicant’s appeal against the decision dated 24 October 2017 of the Director of Immigration (“the Director”)  which rejected the applicant’s non-refoulement claim.

2.  The applicant’s appeal was scheduled to be heard on 25 March 2025.  The applicant was directed to lodge her written skeleton argument not less than 28 days before the hearing and further warned that if she failed to do so, she shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with their appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 7 February 2025 and the Notice of Hearing dated 10 February 2025. 

3.  Despite the directions, the applicant has failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.  

The applicant’s claim

4.  The applicant is a national of Indonesia, aged 47. She last entered Hong Kong to work as a foreign domestic helper on 30 August 2011. After her employment contract was prematurely terminated on 7 March 2012, she did not depart and has since overstayed.  On 26 June 2013, she was arrested by the Immigration Department.  On 9 September 2013, a removal order was issued against her.  On 22 December 2015, she was arrested by the police for failing to report recognizance.  She lodged a non-refoulement claim on 14 January 2016.

5.  The applicant’s claim was on the basis that, if refouled, she would be harmed or killed by her ex-husband who has been abusive and violent towards her since the birth of their son.  The details of her claim were set out at [19] to [53] of the Board’s decision.  In gist, she claimed that her relationship with her ex-husband deteriorated since the birth of their son in 1994, with the ex-husband’s habitually consumed alcohol and drugs whilst the applicant had to work in Saudi Arabia as a foreign domestic helper in 1997 to 2005 to support the family and her parents.  When she returned to Indonesia in 2005, she discovered that her ex-husband had married another woman and had a baby.  The applicant came to Hong Kong in 2005 to work as a foreign domestic helper.  During her return to Indonesia in 2007, her ex-husband attempted unsuccessfully to knock her down with a motorcycle. He refused a divorce as he wanted to take ownership of the house of the applicant’s parents’ house (which he eventually did)  and use it as collateral for his loans.  The applicant eventually divorced him in 2008 and has not contacted him since October 2016, despite his efforts to reconnect with her on Facebook.  Their son, who had been looked after by the applicant’s relatives died from illness in 2012.  The applicant did not seek protection from the police as she believed they were corrupt.  She claimed to have no means or connection to relocate within Indonesia.

The Director’s and the Board’s decision

6.  By a decision dated 24 October 2017, the Director rejected the applicant’s claim on torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds.  

7.  The applicant appealed to the Board.  A hearing took place on 24 June 2019 during which the applicant testified and answered questions from the Board.  By a decision given on 23 July 2019, the Board dismissed her appeal.

8.  The Board considered the applicant’s claim was purely a case of domestic dispute[6].  Based on the applicant’s own account, the pattern of threats from her ex-husband showed that he had a tendency to resort to oral threats whenever the applicant failed to meet his demand but in actual fact he had never carried out the threats over the years[7].  Moreover, contrary to the applicant’s claim, the motorcycle incident in 2007 indicated that her ex-husband had no real intention to kill her[8].  Over the years, the applicant was able to avoid his threats and abuses by working overseas[9].  Further, on the basis of objective country of origin information (COI), the Board found that while problems of corruption exist in the Indonesian police force, the Indonesian authorities have taken measures to improve police efficiency and to eradicate corruption amongst them and have investigated and prosecuted cases of concern[10].  The Board assessed that internal relocation would be a viable option for the applicant, and that she would be able to make a living with her 14 years of work experience as a foreign domestic helper[11].  For these reasons, the Board concluded that the applicant failed to establish the requirements for non-refoulement protection under any of the applicable grounds.

The Judge’s decision

9.  By a Form 86 dated 29 July 2019, the applicant applied for leave to judicially review the Board’s decision.  Other than stating in her supporting affirmation that her ex-husband would harm or kill her, she gave no grounds to support the application.  

10.  The Judge held an oral hearing on 16 October 2024 but the applicant did not attend the hearing.  By a judgment dated 15 November 2024, the Judge refused to give leave for judicial review.  He gave his reasons at [16] to [21] as follows:

“16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18. 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.’

19. From the facts as alleged by the applicant, the Board’s views are reasonable and logical.

20. The applicant has raised no valid ground to challenge the Board’s Decision.

21.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”  

This appeal

11.  On 18 November 2024, the applicant filed a Notice of Appeal to appeal the Judge’s decision.  Her grounds of appeal, contained in a three-page handwritten note that accompanied the Notice of Appeal, can be summarised as follows:

(1)  The impugned decision is illegal, unlawful, self-contradictory and capricious.  It is devoid of cogent reasoning and is against the facts and circumstances of the case.

(2)  The Board had failed to consider the applicant’s case and evidence and the situation in Indonesia where the police are corrupt and torture and deaths in police custody are common. The Board had thus erred in concluding that the applicant will not face a real risk of ill-treatment in her country.

(3)  The adjudicator had acted in a procedurally unfair manner and had failed to meet the greater care and duty owed to a self-represented claimant.

Our reasons for decision

12.  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 of Appeal’s role is not to examine the Board’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].

13.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

14.  In light of the established legal principles set out above, we are of the view that the grounds put forward by the applicant are not arguable.  Our reasons are as follows:

(1)  The applicant has failed to identify any error in the Judge’s decision.  Her grounds of appeal are directed solely at the Board’s decision.

(2)  The complaint that the Board’s decision is unlawful or self-contradictory is vague and devoid of particulars.  The applicant has not identified the facts or evidence that the Board was said to have failed to consider, and/or how that would impact on the correctness of its conclusion on each of the applicable grounds.  On the contrary, it is evident from the Board’s decision that it had taken into account the applicant’s evidence of the various threats of her ex-husband over the years and the nature of her claim before reaching the finding and conclusion that her claim was purely a case of domestic dispute.

(3)  The applicant’s assertion that corruption and torture are common in police custody cannot stand in light of the Board’s assessment on the basis of the COI on the measures to improve the efficiency and to combat corruption amongst the police force.  More importantly, the applicant has failed on her own evidence to satisfy the required threshold of risk of harm under each applicable ground.  Evaluation of risks including the assessment of the COI is a matter for the Board, who is the primary decision maker.  The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness.  In any event, the applicant has not explained the relevance of this complaint to her claim. 

(4)  The applicant has not condescended to any particulars that may support her contention that the Board’s decision is procedurally unfair or not in accordance with the law.  The applicant was given the opportunity to state her case at the hearing before the Board and to supplement what had already been stated in her claim. 

15.  Having considered the materials before us, we agree with the Judge that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused.

16.  Accordingly, this appeal is dismissed.