RE SUPRIYATUN

CACV 484/2022, [2023] HKCA 658

On appeal from [2022] HKCFI 3671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 484 OF 2022

(ON APPEAL FROM HCAL NO. 2549 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 14 December 2022[1] refusing leave to the applicant to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board Office (“the Board”) dated 16 October 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 31 January 2018 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a 47-year-old national of Indonesia. She was married in 1993 and has one son. She last entered Hong Kong on 3 June 2016 and was given permission to remain to work as a foreign domestic helper until 3 June 2018 or two weeks after the termination of her employment contract, whichever was earlier. Her employment contract was terminated prematurely and she had overstayed in Hong Kong since 19 August 2016. On 22 January 2017, she was arrested by the police. She subsequently raised a non-refoulement based on fear of being harmed or killed by a loan shark named Saidah and her people due to the non-repayment of a loan made by her husband in 2002.

3.  In gist, the applicant claimed that her husband borrowed a loan from Saidah for his seafood business but has was not able to make repayment. In mid-2002, when the applicant was working in Singapore, Saidah and her people assaulted her husband. They also twice video-called the applicant and threatened to harm her family if she failed to repay the loan. When she returned to Indonesia in 2004 after completing her employment contract, she could not locate her family members. She had never made a report to the Indonesian police about her missing family members and the threats made by Saidah. She also did not encounter Saidah during her stay in Indonesia. From 2004 to 2013, the applicant went between her friend’s house in Tanjung Pinang and Jakarta to avoid Saidah, while searching for her family members. On the advice of a friend, she left Indonesia for Hong Kong in July 2013 to work as a foreign domestic helper. The details of her claim are set out by the Board at [30] to [45] in the Board’s decision.

The Director’s decision

4.  By a Notice of Decision dated 31 January 2018, the Director rejected the applicant’s claim having regard to the BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5] grounds. The Director found the applicant’s account of the event unconvincing and incredible. There was also no evidence that of the applicant being harmed by Saidah or her people, or that Saidah would still be pursuing her for the repayment of the loan. The Director concluded that the applicant failed to show any real and substantial risk of being harmed by Saidah upon her return to Indonesia. The Director further assessed that state protection and internal relocation options would be reasonably available to her, which would negate or reduce any risk that she might face.

The Board’s decision

5.  The applicant appealed to the Board. On 26 June 2018, the Board conducted an oral hearing for her appeal during which she was assisted by an interpreter. By its decision dated 16 October 2018, the Board dismissed the appeal.

6.  Having considered the documents and evidence before it, the Board found the applicant’s account in relation to the loan was vague, unconvincing and inconsistent[6]. Further, the Board found it entirely implausible that after Saidah tried to harm her family, the applicant for an extended period of time did not call her husband or her mother to enquire about their well-being, especially her only child. Even during her stay in Indonesia, she did not contact the police or reach out to her relatives for a period of nine years[7]. The Board also found he extensive delay in seeking protection in Hong Kong seriously undermined her credibility and the genuineness of her fear[8]. The Board concluded she was not a witness of truth and rejected her claim entirely and dismissed her appeal.

The Judge’s decision

7.  The applicant filed a Form 86 on 13 November 2018 to apply for leave to judicially review the Board’s decision. Other than stating in her supporting affirmation that she did not want to go back to Indonesia as she had no money to repay Saidah and she still did not know where her family members were in Indonesia, the applicant has not provided any grounds in support of her application.

8.  By a FORM CALL-1 dated 14 December 2022, the Judge refused to grant leave for judicial review and gave his reasons in [12] to [17] as follows:

“12. 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).

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

14. 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.”

15. The grounds in paragraph 11 above are not valid grounds to challenge the Board’s Decision.

16. 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.

17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Grounds of appeal

9.  The applicant filed a Notice of Appeal on 22 December 2022 to appeal the Judge’s decision. The Notice of Appeal stated the following as grounds of appeal:

“The High Court gave me a decision but very sad for me. I request to the Court of Appeal to give me a good decision and grant my leave save my life.”

10.  Despite the directions given by the Registrar of Civil Appeals, the applicant has not put in a written submission by the stipulated time. The applicant is therefore deemed to have waived her right to have an oral hearing, and have elected to have this appeal disposed of on paper. The hearing date of 7 March 2023 was accordingly being vacated. We will deal with the present appeal on paper based on the documents filed by the applicant.

Our reasons for decision

11.  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]. They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board. They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board. 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 and/or the process by which the decision was made.

(3)  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.

12.  In light of the established legal principles set out above, we are of the view that the applicant’s appeal has no merits. First, the applicant has failed to identify any error in the Judge’s decision and has not provided any proper ground for her appeal. Second, given that the Board has rejected the factual basis of her claim having regard to all the evidence, there is no support for any assertion that the applicant would be at risk of harm if refouled. Third, assessment of credibility and evaluation of risks are matters 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. The applicant, however, has not identified any legal error, irrationality or procedural irregularity in the Board’s decision and reasons.

13.  In any event, we have reviewed the Board’s decision and the reasons it gave for its decisions. We do not discern any error of law, irrationality, or procedural irregularity. We agree with the Judge that the intended judicial review has no reasonable prospect of success and that the application for leave to apply for judicial review should be refused. Accordingly, we dismiss the appeal.