RE ENDANG ASTUTIK

CACV 75/2023, [2024] HKCA 1058

On appeal from [2023] HKCFI 367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 75 OF 2023

(ON APPEAL FROM HCAL 54/2019)

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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 KW Lung (“the Judge”) given on 28 February 2023 refusing leave to 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 24 December 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 March 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She last entered Hong Kong on 5 July 2015 as a foreign domestic helper, but she overstayed and was arrested by the police on 24 April 2017.  Subsequently, she lodged a non-refoulement claim by way of a written representation dated 27 April 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by her family because of her relationship with her Catholic boyfriend, as well as the child she had with him out of wedlock.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 28 March 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.  After a hearing on 7 September 2018, the Board dismissed the appeal on 24 December 2018 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found on the facts and evidence that the risk of harm posed to the applicant by her family (in particular her brother) was remote, and could in any event be mitigated by her relocating internally within Indonesia.

The Judge’s decision

6.  The applicant filed a Form 86 on 8 January 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In the applicant’s supporting affirmation, she repeated the dangers allegedly faced by her upon her return to Indonesia.

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 leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [16] to [22] of the CALL-1 Form:

“16.   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).

17.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18.  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.’

19.  The grounds in paragraph 15 above had been considered by the Board and were rejected. There is no valid ground to challenge the Board’s Decision.

20.  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.

21.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Grounds for appeal

8.  In the Notice of Appeal dated 13 March 2023, the applicant expressed her disagreement with the Director’s Decision, and stated that “they disregard [her] dangerous situation”.

9.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  She is therefore deemed to have abandoned her right to rely on the same.

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.  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.

13.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

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

15.  On 13 September 2024, the court was notified by the Director that the applicant had been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he use his best endeavours to forward them to the applicant.