RE NUR KHASANAH

CACV 421/2020

[2021] HKCA 580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 421 OF 2020

(ON APPEAL FROM HCAL NO 2115 OF 2018)

____________

____________

_________________

J U D G M E N T

_________________

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 of 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 her 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 last entered Hong Kong on 9 August 2015 as a foreign domestic worker.  Her employment contract was prematurely terminated but she overstayed.  She raised a non‑refoulement claim on 28 December 2015.

4.  The basis of the applicant’s claim is that she would be harmed or killed by her abusive husband who threatened to kill her or get others to do so if she ever went back to Indonesia.

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

The Director’s Decision

6.  The Director of Immigration (“Director”) decided against the applicant’s non‑refoulement claim on 18 January 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 torture and persecution.

The Board’s Decision

7.  The applicant appealed against the Director’s decision to the Torture Claims Appeal Board (“Board”) on 30 January 2018.  After a hearing held on 21 June 2018, the Board dismissed the applicant’s appeal on 26 September 2018.

8.  While the Board accepted that there were occasions when the husband was abusive towards the applicant, it did not accept that there was a real chance or real risk that the husband would seriously harm or kill the applicant if she returned to Indonesia.  The applicant did not intend to return to Indonesia to live with the husband or resume a relationship with him.  The chances of the applicant being subjected to similar harm are remote. The breakdown of marriage happened years ago.  The possibility that her husband would still be motivated to harm or kill her was remote.

Decision of the Judge

9.  As the Judge stated, in the applicant’s Form 86 for leave to apply for judicial review, she mentioned various grounds including misdirection in law, procedural impropriety, and irrationality but with little detail of the substance.   

10.  The Judge held that the applicant’s grounds were vague and broad.  Her Form 86 merely contained various legal words and phrases without particulars or specifics as to how those grounds applied to her case. As to the applicant’s complaint about the lateness of provision of the hearing bundle which contained documents all written in English, the Judge said:

“ I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.”

Grounds of appeal

11.  The applicant in the notice of appeal and in her affirmation in support stated that the Judge was wrong in holding there was no state acquiescence and failed to provide detailed reasons.  She also stated that country of origin information was ignored in the decision of the Judge.

Our view

12.  In our view the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters or took into account irrelevant matters, or that the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].  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.

13.  State acquiescence and country of origin information are matters within the province of the Board and the Director, being the decision‑makers on the facts, not primarily for the Judge who was determining an application for leave for judicial review.  Given that the harm the applicant claimed to fear was from her husband, a private individual with no official capacity, it is difficult in any event to see any basis for alleging state acquiescence.  We also note that the Board recorded that the applicant confirmed to the Board that she had never been harmed by the government authorities in Indonesia and that she did not believe that she would be harmed by them if she returned to Indonesia.

14.  We do not accept that the Judge failed to give detailed reasons.  His reasons adequately dealt with the application given the nature of the grounds put forward and the reasons for rejecting them.

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