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CACV 142/2024, [2024] HKCA 693
On Appeal from [2024] HKCFI 978
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 142 OF 2024
(ON APPEAL FROM HCAL NO 1305 OF 2019)
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BETWEEN
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PURWATI |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative |
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Interested Party |
_____________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Judgment: |
31 July 2024 |
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 12 April 2024, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 5 April 2024 (“the Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 17 April 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 July 2018.
BACKGROUND
2. The Applicant is a national of Indonesia. She last entered Hong Kong as a foreign domestic helper on 9 April 2010, and was permitted to stay until 8 July 2011 or two weeks after the termination of her contract, whichever was the earlier. On 6 October 2010, her employment contract was prematurely terminated, but she did not depart and overstayed illegally. On 19 October 2011, she was arrested by the police. On 1 February 2012, her refugee claim with the UNHCR was closed. On 22 January 2013, her torture[1] claim was rejected. On 13 January 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by a moneylender because of her husband’s outstanding debt. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.
3. By a Notice of Decision dated 30 July 2018, the Director dismissed the Applicant’s non-refoulement claim on the following remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s decision to the Board. On 17 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).
5. The Judge summarised the Board’s Decision at §9 of the CALL-1 Form, as follows:
“The Board recapped the applicant’s claim [29]-[38]. Having considered the evidence, the Board made the following findings. The Board found that the applicant’s evidence was vague, limited and inconsistent [42]. It cast doubt as to whether the applicant was actually married [42]. It also observed that, even if the applicant was married, she had limited information about the debt [43]. It noted that the applicant’s evidence about the consequence of inability to settle the loan inconsistent [44] and that her evidence about whether the moneylender actually looked for her was inconsistent [45]. In addition, the Board noticed that the applicant was also inconsistent as to how she found out that her husband fled [46]. Considering all these evidence, the Board found that the applicant’s claim lacked credibility. In any event, the Board found that internal relocation was a viable option [50]-[54].”
THE JUDGE’S DECISION
6. On 15 May 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
7. On 5 April 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:
“12. The applicant has filed an affirmation, in which she said she rejected the decision of the Immigration Department because they disregarded her dangerous situation.
…
16. The Board had, for the reasons given above, rejected the applicant’s evidence in support of her claim. There is therefore no factual basis in support of her claim.
17. The applicant’s reasons in paragraph 12 are only her general comments. They are by no means valid grounds to challenge the Board’s Decision.
18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”
THIS APPEAL
8. In her Notice of Appeal dated 12 April 2024, the Applicant put forward the following ground(s) of appeal: “The High Court did not consider my [judicial review]. Adjudicator did not give me correct decision. His decision is full of wrong. Please grant my leave.” [sic]
9. Also on 12 April 2024, the Applicant consented to her appeal being disposed of on paper by the Court without an oral hearing.
10. The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions of the Registrar of Civil Appeals dated 12 April 2024.
DISCUSSION
11. 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 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(6)).
12. Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
13. The Applicant has failed to identify or show any error in the Judge’s decision of 5 April 2024, or raise any viable ground of appeal against the Order.
14. The Applicant’s appeal has no merits, and is dismissed.
(Thomas Au)
Justice of Appeal
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(Anderson Chow)
Justice of Appeal
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The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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