RINDA YULIATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 576/2024, [2025] HKCA 492

On Appeal from [2024] HKCFI 3594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 576 OF 2024

(ON APPEAL FROM HCAL NO 1208 OF 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.  This is the Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 20 December 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 17 June 2024, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 April 2024.

BACKGROUND

2.  The Applicant is a national of Indonesia. She last entered Hong Kong to work as a foreign domestic helper on 6 March 2022. Her employment contract was prematurely terminated on 22 November 2022. She had overstayed since 7 December 2022. On 5 December 2023, she was arrested by the police. On 24 February 2024, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her ex-husband (Nurul Huda) because she insisted on divorcing him after finding out that he had an affair with another woman. Details of the Applicant’s claim have been summarised by the Judge at §§3-7 of the CALL-1 Form.

3.  By a Notice of Decision dated 17 April 2024 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.  The Applicant appealed the Director’s Decision to the Board. At the hearing before the Board on 14 June 2024, the Applicant asked to be allowed to stay in Hong Kong for the reason that she had a boyfriend in Hong Kong and was planning to marry him soon. On 17 June 2024, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§9-11 of the CALL-1 Form, as follows:

“[9] The Board assessed the Applicant’s claim on the basis of the factual case as she asserted. While accepting that the Applicant’s ex-husband had frequently assaulted her and repeatedly threatened to kill her, the fact was he never did anything indicating that he was serious in carrying out his threat. The Board therefore found the threats were empty threats, which her ex-husband had no intention to execute. As for her new source of fear, the Board found there is no suggestion that it has anything to do with any possible ill-treatment or harm by her family or her ex-husband if she returns to Indonesia. Furthermore, as she has divorced her ex-husband, the Applicant is free to marry another legally.

[10] As for the Applicant’s allegation that the police refused to provide protection, the Board found it was only her belief that it would be useless to report to the police again. The Board found on the basis of authoritative and credible country of origin information (‘COI’) that despite incompetence and ineffectiveness of the Indonesian police, the government had taken measures to improve the police in terms of efficiency and concern for human rights. The Corruption Eradication Commission was established in 2002 to fight against fraud, bribery and graft in the country. There are non-government organizations which provide protection to women suffering gender-based violence. The Board found adequate state protection is available. In view of her age and experience, it also found internal relocation feasible.

[11] Primarily for these reasons, the Board found the ill-treatment suffered by the Applicant did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance as to entitle her to protection under the Torture Risk ground. For the same reason, it found the Applicant would not be subjected to the kind of ill-treatment contemplated under BOR 3 Risk ground. It also found there is nothing in her case that supports her claim under BOR 2 Risk ground. As the ill-treatment she suffered was on account of her domestic dispute with her ex-husband and not on account of one of the five reasons under the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie race, religion, nationality, membership of a particular social ground, or political opinion, the Board found she is not entitled to protection under Persecution Risk ground.”

THE JUDGE’S DECISION

5.  On 25 July 2024, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In her supporting affirmation, she merely stated that her life would be in danger if she returned to her home country.

6.  On 20 December 2024, the Judge refused to grant leave to apply for judicial review, for the following reasons:

“[15] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the [Unified Screening Mechanism]; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

[16] The Board assessed the Applicant’s claim on the basis of the case as she asserted. These are the Board’s finding of facts which the Applicant could have no complaint. It was on the basis of these facts, that the Board further found she is not entitled to non-refoulement protection under any of the four applicable grounds. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding of the law, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Furthermore, on the basis of authoritative and credible country of origin information, the Board is satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real. These are also finding of fact which the Court on a judicial review will not interfere. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

THIS APPEAL

7.  In her Notice of Appeal filed on 31 December 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]

8.  The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 3 April 2025. Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  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 was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

10.  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.

11.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

12.  The Applicant’s appeal has no merits, and is dismissed.