RE KARTININGSIH

CACV 411/2024, [2025] HKCA 848

On appeal from [2024] HKCFI 2502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 411 OF 2024

(ON APPEAL FROM HCAL 1833/2019)

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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 Reuden Lai (“the Judge”) given on 16 September 2024 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 25 June 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 November 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong as a foreign domestic helper, and was permitted to remain until 3 July 2015.  However, she overstayed, and on 3 November 2015, she surrendered to the Immigration Department.  On 31 July 2017, she lodged a non-refoulement claim by written representations.  

3.  The applicant’s claim was based on a fear of being harmed or killed by her ex-boyfriend and his friends.  The details of the applicant’s claim have been summarised by the Judge at [4] to [12] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 30 November 2018 (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 15 April 2019, the Board dismissed the appeal by the Board’s Decision, which covered all applicable grounds for non-refoulement protection.  The Board found on the evidence that there was insufficient basis to suggest that the applicant would face a substantial risk of harm if refouled.  In any event, suitable options of internal relocation were available to the applicant to minimise such risk, if any.   

The Judge’s decision

6.  The applicant filed a Form 86 on 2 July 2019, seeking to judicially review the Board’s Decision, without setting out any grounds.  In the applicant’s supporting affirmation, she recited the background to her claim and her alleged fears, as well as contending that the Board had rejected her claim “without any proper inquiry and without carefully understanding [her] situation”.    

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 [33] to [57] of the CALL-1 Form:

“33.  In the Supporting Affirmation, the Applicant raised the following complaints:

(1)  She lodged the Claim on 3 November 2015 which was refused only by 30 November 2018.  There was substantial delay in processing the Claim.

(2)  The hearing bundle was given to her just one week before the appeal hearing and the skeleton submissions of the Director was given to her just a few days before the hearing.  The majority of the documents were in English and she had only limited skills in English.  She was confused in terms of what was happening.  She said that the lack of care by the Board to make appropriate arrangements in relation to the hearing bundle rendered the hearing unfair.

(3)  The Board did not inform her by phone the issuance of the Board’s Decision on the date of issuance and she did not receive the same until 4 days later.

(4)  She was aggravated that her credibility was found questionable.

(5)  The Board significantly relied on source of news which is not officially recognized, hearsay or outdated.

(6)  Her BOR 2 risk claim had not been screened by the Immigration Department.

(7)  The Appeal was refused on unacceptable and unexplainable grounds.  The Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding her situation.  She asserted that: ‘To understand my claim fairly, my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with his case what real danger I would face if I am returned there.’ (§15 of the Supporting Affirmation)

34.  The Applicant surrendered to the Immigration Department on 3 November 2015.  According to §1 and §9 of the DOI Decision, the Applicant made the current non-refoulement claim, ie the Claim, on 31 July 2017 by way of a written submission.  The DOI Decision was issued on 30 November 2018, ie about 1 year and 4 months after the Applicant’s written submission.

35.   The Applicant attended the hearing before me on 29 August 2024 (“Court Hearing”) and confirmed that she had only made one non-refoulement claim.  If so, according to records of the Immigration Department, her claim was made in 2017 instead of 2015.

36.  She further confirmed that she had been released on recognizance shortly after her surrendering to the Immigration Department until the Court Hearing. 

37.  There are many pending claims for non-refoulement protection.  The Director had to deal with a large number of cases with limited resources.  It took the Director 16 months to investigate and decide the Claim is understandable.  I do not agree that there was delay on the part of the Director in handling the Claim.  Furthermore, the Applicant has been released on recognizance pending determination of the Claim.  I do not see that the length of time taken up by the Director in processing the Claim has caused any prejudice or unfairness to the Applicant.  In the circumstances of this case, I do not agree that the length of time taken up by the Director in processing the Claim will per se render the Board’s Decision liable to be quashed by this court.

38.  The Applicant complained that the hearing bundle and the Director’s skeleton submissions were provided to her only a week or a few days before the hearing for the Appeal with a weekend intervening, leaving her insufficient time to prepare for the hearing. The documents were substantially in English which she was not familiar with and she could not afford interpretation service.

39.  It could not have been the intention of any authority laying down the principle of high standards of fairness that the principle would include provision of interpretation service at any time a claimant desired or required.  It was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  She has to live with or cope with her language disability.  She cannot expect to have the luxury of having every document translated into her native language for her benefit as and when she requires.  She has to find assistance herself from among her friends and her ethnic community.  I note that the Applicant had affirmed the Supporting Affirmation which was in English without interpretation service and she had lodged a written submissions date 13 August 2024 with the court (“Submissions”) also in English.  The Applicant confirmed at the Court Hearing that she understood the contents of the Supporting Affirmation and she wrote the Submissions.  These show that although she may not be fluent in English, she does have the ability to understand ordinary English.

40.  The hearing bundle should be made up of her claim form, the record of her screening interview, the DOI Decision, the COI and her notice of appeal.  The Applicant knew what was contained in her claim form and her notice of appeal which were filled in by her.  She knew what was contained in the record of screening interview which she attended with the assistance of an interpreter.  The record should have been read back to her in her own language before she signed the same. Recognizing the limitation in her English language ability and importance of her claim, she ought to have taken notes, at least very brief ones, to remind herself what had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips.  At the Court Hearing, the Applicant was unable to identify any document in the hearing bundle which she had difficulties to understand because of the language problem. 

41.  I see no merits for the Applicant to argue that the lack of language assistance had jeopardized her rights in this case.

42.  The Applicant had received the hearing bundle one week before the hearing and the Director’s skeleton submissions a few days before the hearing.  The period might be short but the Applicant should not have indulged herself for the weekend and forgotten about her appeal as if she was a tourist visiting Hong Kong. Furthermore, time should start to run from the date of her notice of appeal, i.e. 12 December 2018.  The oral hearing was held on 15 April 2019.  In between, the Applicant had more than 4 months to find out what the appeal bundle was about.  If she needed more time for preparation.  She could have raised that with the Board at the hearing but the Applicant confirmed at the Court Hearing that she did not make any request for adjournment to the Board on the ground of insufficient preparation time or language problem.

43.  In §43 of the Board’s Decision, the Board recorded that:

‘At the hearing, the Appellant adopted all the information contained in the Hearing Bundle and confirmed that they were all true and correct …’

44.  Having regard to the fact that the Applicant should be familiar with what was contained in the hearing bundle and she did not raise any such issue during the hearing before the Board when she was able to give evidence and make representation of her case to the Board without any problem, I do not find any merits in this complaint of the Applicant.

45.  The Board’s Decision was issued on 25 June 2019 and the Applicant received the same on 29 June 2019, ie in 4 days’ time.  I see not delay in sending the Board’s Decision to the Applicant.  The Applicant in fact filed the Form 86 herein on 2 July 2019.  No prejudice was caused to the Applicant by sending a copy of the Board’s Decision to her by post.  This was agreed by the Applicant at the Court Hearing.  I see no substance in this complaint of the Applicant.

46.  In the Supporting Affirmation, the Applicant stated that ‘it aggravates him [sic] that his [sic] credibility was found questionable.’  Nowhere in the Board’s Decision did the Board question the credibility of the Applicant.  The Board accepted the Applicant’s evidence and found that SM had conspired with other to extort money from the Applicant when she suggested that she wanted to break up with SM and the threats by SM and his friends and the attacks, were all measure to extort money from the Applicant.  As the Board had not questioned the Applicant’s credibility, there is no basis for the Applicant to rely on this ground to apply for judicial review against the Board’s Decision.  

47.  The Applicant complained that the Board relied on COI which were unofficial, hearsay or outdated.  COI by nature is hearsay evidence.  The COI considered by the Director had been listed in the List of References annexed to the DOI Decision.  They were included in the hearing bundle and considered by the Board.  They came from official websites of government authorities, international organizations and newspapers.  They included publications up to February 2018 when the oral hearing before the Board took place in April 2019. They were not outdated.  The Applicant confirmed at the Court Hearing that she did not seek to adduce any more up-dated COI at the hearing before the Board and she further confirmed that she did not have any up-dated COI to produce to this court for the Court Hearing.  I see no merits in this complaint of the Applicant.

48.  The Applicant complained that her BOR 2 risk claim had not been screened by the Immigration Department.  This is plainly wrong.  In §3 of the DOI Decision, it was expressly stated that the Claim was assessed on all applicable grounds under the USM including (but not limited to) right to life under Article 2 of BOR. More detailed discussions on the BOR 2 risk claim were set out in §§20 to 23 of the DOI Decision.  The Applicant’s BOR 2 risk had also been considered by the Board in §§15-16 and §60 of the Board’s Decision.  I find this ground for the intended judicial review wholly devoid of merits.

49.  The Applicant said that the Appeal was refused on unacceptable and unexplainable grounds.  She also complained that the Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding her situation.  The Applicant provided no particulars or specifics to substantiate these complaints.  She said that the Director and the Adjudicator should have visited her country to understand her claim. 

50.  There is no legal or legislative basis to require the Director or the Board to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim.  The burden is on the Applicant to prove her claims while the Director and the Board should have conducted proper enquiries into current and relevant COI as regard her home country in their assessment and determination of her claims which the Director and the Board had done in this case.

51.  In the DOI Decision and the Board’s Decision, the Director and the Board had set out the reasons for their respective findings leading to their decisions in rejecting the Claim and the Appeal.

52.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

53.  In the Submissions, the Applicant stated that:

‘I dont [sic] want go back Indonesia, because my life very danger, because of my loan sharks will kill me, because I’cant [sic] pay the debt I dont [sic] have money to pay the debt. And I’m already married in Hong Kong now I’m waiting visa now. Please save my life from a loan sharks. Please give me live in Hong Kong, because only in Hong Kong I feel savety [sic].’

54.  The fact that the Applicant has been married in Hong Kong is not a ground for seeking non-refoulement protection.

55.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness. 

56.  The Board found that the Applicant’s case was only a case of money extortion from the Applicant by her ex-boyfriend.  The ill-treatment inflicted on her did not fall within the meaning of ‘torture’ under section 37U(1) of the Ordinance.  The Board found that the Applicant had failed to establish that there were substantial grounds for believing that she would be liable to be subjected to torture if she were sent back to Indonesia.  The Board did not find that the Applicant would be subjected to the kind of ill-treatment contemplated in BOR 3 or her life would be at risk had she been sent back to Indonesia.  Her case had nothing to do with the issue of race, religion, nationality, membership of a particular social group, or political opinion and thus not covered by persecution risk.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.  

Conclusion

57.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.”

Grounds for appeal

8.  In the Notice of Appeal filed on 30 September 2024, the applicant stated that she would like to “reject and review” the Court’s decision, as it had disregarded her “dangerous situation”.

9.  In her written submissions lodged on 10 October 2024, the applicant referred to the well-established principles in ST v Director of Immigration (sic)[6] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

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 her 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.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in her written submissions had not been applied in the consideration of her leave application by the Judge and in the processing of her non-refoulement claim.

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