RE SRI PUJIASTUTI

CACV 469/2022, [2024] HKCA 116

On Appeal From [2022] HKCFI 3565

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 469 OF 2022

(ON APPEAL FROM HCAL NO. 2587 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung dated 23 November 2022 who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (‘the Director’)  and the Torture Claims Appeal Board (‘the Board’).

2.  On 29 November 2022, the applicant in this appeal has consented that this appeal may be disposed of on paper without an oral hearing.  We consider the arrangement proper and give our judgment below.

2)   Background

3.  The applicant is a national of Indonesia.  She arrived in Hong Kong on 10 February 2012 as a domestic helper.  Although her employment contract was prematurely terminated, she did not depart and overstayed.  On 16 May 2013, the applicant was arrested. In June 2013, a removal order was issued against the applicant.  On 27 May 2014, the applicant lodged a non-refoulement claim on the basis that she would be harmed or killed by her parents’ creditor.  The applicant was informed by the Director that her application would be assessed on all applicable grounds. On 6 February 2017 she lodged a non-refoulement claim form.

4.  The details of the applicant’s claim have been summarized by the Judge at [4]-[5] of the CALL-1 Form.

3)  The Director’s Decision

5.  The Director decided against the applicant’s claims on 27 February 2017.  The decision covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc)  and Article 2 (right to life)  of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

6.  The applicant appealed against the Director’s decision to the Board.  After a hearing held on 25 May 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 25 October 2018.

7.  The Board held that the risk of any harm befalling on the applicant at the hands of her mother’s creditor was low.  The applicant stated that the mother’s loan was taken out by a bank but she was unable to provide any information about the creditor or the loan.  The Board held that if the loan was from a bank, it was highly unlikely that a bank would seek to harm borrowers rather than to take out legal steps to obtain payment.  The Board held that the applicant’s claims that the mother’s creditor would harm her was speculative and not based on any recent information.  The Board held that the applicant had not had any contact with her family members for about ten years and she had no current information on whether the loan had been repaid or not by her mother or brother.  The applicant’s claim that the house was confiscated by the bank would mean that the loan was satisfied by the bank gaining possession many years ago.  The applicant failed on all applicable grounds that the Board considered.

5)  Decision of the Judge

8.  The Judge held that there were no valid grounds from the applicant’s documents to challenge the Board’s decision.

6)  Grounds of appeal

9.  In short, the applicant’s notice of appeal and written submission contain the following grounds of appeal :

i)  The applicant is not satisfied with the decision because it is away from facts and reality;

ii)  There is no transparency in the decision;

iii)  Things related to her case were ignored;

iv)  The applicant will go back to her home country but she needs more time;

v)  The Police and other law making authorities use their political influence against her;

vi)  The Police will eliminate people who are against them; and

vii)  The applicant’s home country is corrupt.

7)  Our view

10.  We will repeat the approach of this Court in dealing with cases of this nature :

i)  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 scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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 their decisions.

ii)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

iii)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

11.  In our view there are no merits in the applicant’s appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

12.  All of the applicant’s intended grounds of appeal are fact sensitive and within the province of the Board.

13.  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.