RE SRI INDARSIH

CACV 440/2020

[2021] HKCA 578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 440 OF 2020

(ON APPEAL FROM HCAL NO 2150 OF 2018)

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J U D G M E N T

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Hon G Lam J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan dated 19 August 2020[1] in which he refused to grant leave to her to apply for judicial review in relation to her non-refoulement claim.

2.  This appeal was scheduled to be heard on 20 April 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 25 January 2021, she had failed to lodge any skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we deal with this appeal on paper.

Factual background

3.  The applicant is a national of Indonesia.  She entered Hong Kong on 23 August 2006 with permission to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 8 September 2009 but she overstayed.  She raised a torture claim on 9 November 2009 which was subsequently rejected on 5 April 2012.  On 15 November 2013 the applicant raised a claim for non‑refoulement protection on all applicable grounds other than torture.

4.  The basis of the applicant’s claim is that she would be harmed or killed by her abusive husband who had been demanding money from her.

5.  The background facts have been summarized in the decision of the Judge at [2]-[4].

The Director’s Decision

6.  The Director of Immigration (“Director”) decided against the applicant’s non‑refoulement claim on 27 March 2018. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, Bill of Rights Article 2 (right to life) risk as well as other statutory and Convention rights against persecution.

The Board’s Decision

7.  The applicant appealed against the Director’s decision to the Torture Claims Appeal Board (“Board”) on 6 April 2018. After a hearing held on 13 August 2018, the Board dismissed the appeal on 18 September 2018.

8.  The Board was prepared to accept that the applicant’s husband had demanded that she remit money to him, sold the applicant’s house she inherited from her grandmother to repay his debts, beat and kicked the applicant when she returned unannounced in 2002 and forced her to leave the house, and married another woman.  The Board found that although the applicant’s version of events was generally consistent, the fight between the applicant and her husband in which he was violent towards her occurred in 2002, which was over 16 years ago (by the time of the hearing before the Board).  The applicant’s own evidence is that she had had little or no contact with him since 2002.  She had demonstrated that she was able to live and work in other parts of Indonesia, and that when she lived there her husband did not find or harm her.  Internal relocation is possible, and state protection would be available.  The Board concluded that the applicant did not face a real chance of harm in Indonesia from her husband or from any other person.

Decision of the Judge

9.  As the Judge stated, in her Form 86 filed for the application for leave to apply for judicial review, the applicant put forward 9 grounds including misdirection in law, procedural impropriety, and irrationality but with little detail on the substance.   

10.  The Judge held that the applicant’s grounds were vague and broad.  They were merely legal phrases, but were not supported by any particulars or specifics as to how those grounds or labels applied to her case.  The only complaint that was made with some particulars was the alleged lateness in the provision of the hearing bundle to her (for the Board hearing) which contained documents in English.  The Judge nevertheless found this complaint to be without merit, as most of the documents had been earlier made available to the applicant who should have been familiar with them.  She also never made such complaint before the Board during the hearing. 

11.  The Judge noted that both the Director and the Board found that the risk of harm to the applicant from her husband was a localised one and that it would not be unreasonable or unsafe for her to relocate to another part of Indonesia.  Having carefully considered the decisions below, the Judge did not find any error of law or procedural unfairness in either of them, or any failure to apply the requisite high standards of fairness.  Accordingly he dismissed the application for leave to apply for judicial review.

Grounds of appeal

12.  In the notice of appeal and in her affirmation filed in this court, the applicant stated that the Judge was wrong in law in holding there was no state acquiescence or involvement, and that he failed to provide detailed reasons in support of his decision.  She also stated that country of origin information had been ignored in the decision of the Judge.

Our view

13.  In our view the applicant’s appeal is without merits.  It is incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s decision.

14.  State acquiescence and country of origin information are matters primarily within the province of the Director and the Board, not the Judge upon an application for leave for judicial review.  Nor do we see how it can be said to be incorrect to find that there was no state acquiescence or involvement in Indonesia, given that the harm feared had come from a private individual, the applicant’s husband.  The Judge has in our view given adequate reasons for disposing of the application in the way he did.  The applicant’s allegation that country of origin information was ignored by the Judge is completely unsubstantiated.

15.  There is no basis to disturb the Judge’s decision. Accordingly, the appeal is dismissed.