RE SITI ROHANI

CACV 378/2022, [2025] HKCA 41

On Appeal From [2022] HKCFI 2662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 378 OF 2022

(ON APPEAL FROM HCAL NO 2332 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 1 September 2022 ([2022] HKCFI 2662)  (“the Leave Decision”)  refusing her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 12 October 2018 (“the Board’s 2^nd Decision”), whereby the Board refused to allow the late filing of the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 6 April 2017 (“the Director’s 2^nd Decision”)  refusing her non-refoulement claim on the basis of BOR2 risk[1].

2.  By the written confirmation dated 13 September 2022, the applicant indicated her consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Indonesia.  She entered Hong Kong on 11 January 2013 as a foreign domestic helper.  When her employment contract was prematurely terminated, she was permitted to remain as a visitor until 26 March 2013.  She did not depart and has overstayed since 27 March 2013.  On 16 April 2013, she was arrested by the police for overstaying. On 5 November 2013, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband as she failed to repay his debts.  Details of the applicant’s claim were summarised by the Judge at [4] - [5] of the Leave Decision.

4.  By the Notice of Decision dated 29 May 2015 (“the Director’s 1^st Decision”), the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR3 risk[3], and persecution risk[4].  By the Director’s 2^nd Decision, the Director further dismissed the applicant’s non-refoulement claim on the ground of BOR2 risk.

5.  The applicant appealed against the Director’s 1^st Decision to the Board but failed to attend the scheduled hearing.  The Board refused to accept her explanation of being late for 1.5 hours owing to traffic conditions and proceeded to consider her claim on paper.  After considering the evidence, the Board rejected her appeal.  The Board’s reasons were summarised by the Judge at [10] of the Leave Decision:

“Having considered the evidence, the Board found that (i)  the case was about domestic violence without any state involvements [7]-[9]; (ii)  there was no evidence of any injuries that amounted to severe pain and suffering [10]-[13]; and (iii)  state protection and internal relocation were both viable alternatives [14]-[19]; [23]. Independently assessed, her claim also lacked credibility [30]-[32]. For these reasons, the Board rejected the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. By the Board’s First Decision dated 3 March 2017, her appeal against the Director’s First Decision was therefore dismissed.”

6.  On 15 May 2017, the applicant appealed against the Director’s 2^nd Decision to the Board.  By then, she was late for over three weeks in lodging her appeal.  The Board also rejected her explanation that the said decision was sent to her old address as it was her own responsibility to update the address with the Director.  Insofar as her non-refoulement claim was concerned, the Board reviewed her notice of appeal / petition and found that she merely repeated her case without advancing any further details other than those already stated and dismissed in her claim on Torture risk, BOR3 risk and Persecution risk.  Accordingly, the Board refused to exercise its discretion to allow the late filing.

THE JUDGE’S DECISION

7.  On 24 October 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s 2^nd Decision.  No ground was given in her Form 86 and in her supporting affidavit, she merely stated that she wanted to stay in Hong Kong as her life would be in danger if she returned to her country.

8.  As the applicant did not request for an oral hearing, the Judge considered her application on papers.  On 1 September 2022, the Judge refused to grant leave to apply for judicial review.  His reasons were stated at [15] - [23] of the Leave Decision:

“15.  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).

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

17.  The issue before this Court is whether the Board was in error in refusing to extend time for the applicant to file her notice of appeal because of the delay.

18.  It is clear that the Board had considered the applicant’s facts, in particular, by reviewing her case in the Board’s First Decision and found that the applicant did not have additional facts in support of her appeal against the Director’s Second Decision rejecting her claim on BOR 2 risk.

19.  Also, The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

‘59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017)  64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016)  at [52].’

20.  The reason set out in her affirmation is not a valid reason to challenge the Board’s Decision.

21.  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.

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

CONCLUSION

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

THIS APPEAL

9.  In her Notice of Appeal filed on 13 September 2022, the applicant stated:

“I am not satisfied with the Decision because its away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.” (sic)

10.  Pursuant to the directions of the Registrar of Civil Appeals dated 13 September 2022, the applicant lodged her written submissions on 19 September 2022.  In those submissions, the applicant repeated the factual basis and procedural history of her non-refoulement claim.  She further claimed that the problem in her country persisted and it would be difficult to get justice in a corrupted environment.

11.  On 13 May 2024, the applicant further wrote to this court that she could not return to Indonesia given her subsisting problem (“the Letter”).  She alleged that her entire family passed away and her house collapsed after a landslide and floods.  She further claimed that her “ex-husband” sold her house and land and her cows and that although she was a Muslim before, she is a Christian now. She feared that he would kill her upon refoulement.  She also claimed that she wanted to stay in Hong Kong as she had found a step-father in Hong Kong who would help her.

DISCUSSION

12.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

13.  In our view, the applicant’s allegations have no substance.  The applicant’s complaints are general and bare assertions without any specific particulars or evidence in support.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, she also fails to specify any error in the Leave Decision.  Her assertions are not proper grounds of appeal and the appeal can be dismissed on this basis alone.

14.  As to the factual assertions made in the Letter, we noted that those are also general and bare factual allegations without any specific particulars or evidence in support.  In any event, if there has in fact been a significant change of circumstances as asserted since the applicant’s claim was finally determined, it is open to her to make a subsequent claim to the Director in light of her current circumstances under section 37ZO of the Immigration Ordinance (Cap 115).  See Oguzie Ikechukwu Charles v Torture Claims Appeal Board [2022] HKCA 135 at [19] and Ram Chander v Director of Immigration[2018] HKCA 585 at [8] - [18].  Her allegations are not valid grounds of appeal against the Judge’s refusal to grant leave to apply for judicial review.  Accordingly, we see no basis to disturb the Leave Decision.

15.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.