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CACV 392/2022
[2023] HKCA 37
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 392 OF 2022
(ON APPEAL FROM HCAL NO 1059 OF 2019)
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BETWEEN
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Giyarsih |
Applicant |
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and |
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Torture Claims Appeal Board /
Non‑refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
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Before: Hon Kwan VP and Fung J in Court
Date of Hearing: 4 January 2023
Date of Judgment: 13 January 2023
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J U D G M E N T
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Hon Kwan VP (giving the Judgment of the Court):
1. On 20 September 2022, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 27 September 2022.
2. The applicant is a national of Indonesia. She entered Hong Kong on 1 June 2012 as a foreign domestic helper. On 8 August 2012, her employment contract was terminated prematurely after her criminal conviction. She was referred to the Immigration Department on 15 September 2012. On 26 October 2012, she raised a torture claim which was rejected by the Director of Immigration (“the Director”) on 27 May 2013 and the subsequent appeal was dismissed by the Board on 24 September 2013. She lodged a non-refoulement claim on 25 July 2013 on the basis that, if refouled, she would be harmed or killed by her creditor.
The decision of the Director
3. As the applicant’s torture claim had already been rejected, her non-refoulement claim was assessed under the unified screening mechanism on BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. By a Notice of Decision dated 9 July 2018, the Director rejected the applicant’s claim.
4. Taking into account the absence or low intensity and frequency of past ill-treatment from the creditor, the Director assessed the level of future risk of harm is low and the alleged ill-treatment has not attained the requisite minimum level of severity for non-refoulement protection. The Director also considered that the availability of state protection and internal relocation alternatives in Indonesia would further lower or negate the perceived risk.
The decision of the Board
5. The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 15 January 2019. In view of the inconsistencies in the applicant’s claim and her assertions that the creditor had never behaved violently or in a threatening manner towards her or any of her family members, the Board did not accept the applicant’s claim she would be at risk of harm by the creditor should she return to Indonesia. Therefore, the Board rejected the appeal on 29 March 2019.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 18 April 2019 to seek leave to apply for judicial review against the Board’s decision. She raised the following grounds in her affirmation:
(1) procedural impropriety for failure to apply paragraph 2 of the UN committee against Torture General Comment No. 2;
(2) failure to conduct sufficient inquiry into the relevant country of origin conditions;
(3) failure to state sufficient reasons for BOR 3 risk assessment;
(4) error/misdirection in law for failure to take into account psychological strain and threats to her personally or threats to her directly to kill her;
(5) procedural impropriety for failure to consider her fear properly;
(6) no sufficient basis to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon refoulement.
The judge’s decision
7. DHCJ Lung considered the application on paper as the applicant did not request for an oral hearing. The judge found the applicant’s grounds are bare assertions or personal opinions without any evidence in support. He also held there is no error of law or procedural unfairness in the Board’s decision. Thus, he concluded there is no realistic prospect of success in her intended judicial review and dismissed the leave application on 20 September 2022.
Grounds of appeal
8. The applicant stated the following grounds of appeal in the Notice of Appeal filed on 27 September 2022:
(1) The judge, the Board and the Director did not properly consider her fear and refused her claim without valid grounds.
(2) The decision maker failed to make proper observation into the country of origin conditions.
9. In her written submissions, she reiterated her grounds of appeal and further submitted:
(1) The decision makers failed to take into account the fact that the applicant would face real risk upon refoulement and that she has been placed in severe mental distress as a result.
(2) Her claim is not a personal or private dispute. She will be in danger wherever she hides in her country.
(3) In the judgment, there are no clear directions as to why she would not be a subject of persecution upon refoulement.
Legal Principles
10. 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.
11. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information (“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.
12. 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.
Analysis and disposition
13. The applicant’s grounds and submissions in this appeal are just bare assertions without evidence in support. In particular, the Director, the Board and the judge have all given detailed reasons for rejecting the applicant’s claim. The Board has duly considered the applicant’s claim under all applicable grounds including the risk of persecution and decided that the applicant failed to substantiate her claim of risk of harm upon refoulement. Under these circumstances, it is not necessary for the Board to further consider the COI. The applicant did not adduce any evidence to refute the Board’s findings. She also failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
14. The applicant’s appeal has no merits. We therefore dismiss her appeal.
(Susan Kwan)
Vice President
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(Barnabas Fung)
Judge of the Court
of First Instance
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The Applicant (Appellant), acting in person
[1] [2022] HKCFI 2877
[2] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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