RE MARIYANI SITI

CACV 141/2023, [2023] HKCA 991

On appeal from [2023] HKCFI 1115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 141 OF 2023

(ON APPEAL FROM HCAL NO. 770 OF 2019)

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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 Lung (“the Judge”) given on 5 May 2023[1] refusing to give her leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 13 March 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (the “Director”) dated 27 February 2018 rejecting her non-refoulement claim.

Background

2.  The applicant is a national of Indonesia aged 33. She is single. She came to Hone Kong on 13 September 2012 and was given permission to remain to work as a foreign domestic helper. On 19 August 2013, her employment was terminated. She did not depart when the permission to stay expired on 2 September 2013. She surrendered to the Immigration Department on 21 January 2015. On 11 September 2015, she was convicted of the offence of breach of condition of stay by overstaying in Hong Kong and was sentenced to four weeks’ imprisonment suspended for three years. She later raised a non-refoulement claim based on fear of being harmed or killed by debt collectors due to her inability to repay a loan. The details of the applicant’s claim are set out at [7] of the Director’s Decision.

3.  In gist, the applicant claimed that in mid-2011, her brother borrowed a large sum of money (100 million rupiahs) from the bank which was guaranteed by her and secured by her mother’s house. Her brother disappeared with the money and did not make any repayment. The debtor collectors demanded the applicant to make repayment and threatened to kill her and her mother and stepfather if she did not repay her brother’s loan. They visited the applicant’s house about twice a week to demand repayment and constantly made verbal threats to her and her parents. They had paid some money but it was hardly enough to cover the interest payments.

4.  In September 2012, through the arrangement of an employment agency, she came to Hong Kong to work. After her employment terminated, she could not find a new employer. As she could not send money home for making repayment, her mother’s house was taken by the bank and her family had to live with a relative. Her parents told her that the debtor collectors continued to pressurise them to make repayments as her mother’s house was not sufficient to pay off the indebtedness. Since 2016, she had lost contact with her family as her mother had fallen ill and her stepfather was angry with her for not sending money home. The applicant’s mother had since passed away.

The Director’s decision

5.  By a Notice of Decision dated 27 February 2018, the Director rejected the applicant’s claim on all applicable grounds, namely, BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5] grounds.

The Board’s decision

6.  The applicant appealed to the Board. The Board heard the appeal at a hearing held on 19 November 2018. By its decision dated 13 March 2019, the Board dismissed the appeal.

7.  In gist, the Board considered there were a number of inconsistencies and implausibility in the applicant’s claim. They include how her brother was able to secure a large bank loan given he did not work and was a gambler and an alcoholic; why the bank would accept the applicant to act as a guarantor given her low income; why her mother would put up her house for her son who neither needed nor merited a loan; the high interest rate which was more in line with a loan from a loan shark than a bank loan; and the applicant’s failure to give the name of the bank or provide any supporting documentation.

8.  The Board also considered that on the applicant’s case, the debtor collectors only made verbal threats and there was no indication that they would carry out the threat. The Board did not accept that the applicant’s assertion that her stepfather had threatened to kill her, noting too that she had not been in contact with him since her mother’s death. The Board further took into account that it was the applicant who chose to terminate the employment contract in Hong Kong which strongly suggested that she was not concerned about the situation in Indonesia.

9.  In the circumstances, the Board did not accept the applicant would face any risk of harm as claimed if she were to return to Indonesia. The Board also found internal relocation options were available to the applicant, which would negate or reduce any risk of harm that she might face. The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the applicable grounds and dismissed her appeal.

The Judge’s decision

10.  The applicant filed a Form 86 on 19 March 2019 to apply for leave to judicially review the Board’s decision. She stated in the Form 86 and the supporting affirmation that the decision was unfair and she would be in danger if she returned to Indonesia as she did not have money to repay the bank.

11.  The Judge dealt with the application on paper. By a Form CALL-1 dated 5 May 2023, the Judge refused to give 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 Board had found that her alleged loan and her step father’s threat were incredible. The grounds as set out in paragraph 11 above do not assist her application. There is no valid ground 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.”

The grounds of appeal

12.  By a notice of appeal issued on 10 May 2023, the applicant appeals the Judge’s decision to this Court. Other than stating that the applicant would like to review her case, the notice of appeal did not set out any ground of appeal.

13.  In her written submissions dated 4 July 2023, the applicant gave an account of the procedural history of her claim and her application for leave to apply for judicial review. She stated that her life was threatened by her creditor and her stepfather because of her brother’s failure to repay his loan. She claimed to have submitted documents that she brought from her country but her claim was not believed. She also complained that the Judge only looked at the papers but did not hold an oral hearing to consider her arguments, and that contrary to the Judge’s holding, the Board had erred in its decision.

14.  At the hearing of the appeal, the applicant did not have anything to add to her written submission.

Our reasons for decision

15.  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, who are responsible for assessing the credibility of witnesses, the evidence and country of origin conditions, and make findings of fact pertaining to whether there are risks of harm, availability of state protection and viability of internal relocation.

(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.

16.  In light of the established legal principles set out above, we are of the view that the grounds and arguments put forward by the applicant have no merits. Our reasons are as follows:

(1)  The complaint that her application was determined by the Judge on paper is unarguable. First, the applicant did not ask for an oral hearing in her Form 86 or supporting affirmation. Under Order 53 rule 3(3) of the Rules of the High Court, Cap. 4A, the Judge may determine her application without an oral hearing. Second, the applicant has not shown any actual prejudice or unfairness occasioned by the Judge’s determination of her application without a hearing. She has not indicated that there were matters or submissions that she would have made but could not make as a result of her application not being heard in court.

(2)  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.

(3)  The Board had given full reasons for its doubts over the veracity of the factual basis of the applicant’s claim and its finding that there was no risk of harm to her as claimed, which in any event would be negated or reduced by the availability of internal relocation alternatives. Although the applicant disagrees with the Board’s findings, she has not put forward any arguable grounds to show that the Board’s assessment of credibility and finding of facts can be disturbed on public law grounds.

(4)  In the circumstances, the applicant’s assertion that she will face danger if she returns to her home country cannot stand.

17.  We have separately reviewed the Board’s decision. We agree with the Judge that there is no proper basis for interfering with the Board’s evaluation of the evidence and its assessment of credibility and finding of facts. The intended judicial review has no reasonable prospect of success and leave to apply for judicial review should be refused. As the applicant’s appeal has no merits, we dismiss the appeal.