RE RUKAYATI BT KASDI SODO

CACV 391/2021

[2021] HKCA 1620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 391 OF 2021

(ON APPEAL FROM HCAL NO 2997 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge P Li (“Judge”) on 10 August 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 3 December 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 20 March 2018 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is an Indonesian national.  She was employed in Hong Kong as a domestic helper beginning in 2011 and was last permitted to remain in Hong Kong until 2 November 2015.  She did not depart, and overstayed.  She was arrested by police on 1 December 2016, and lodged a non‑refoulement claim on 12 December 2016. 

3.  The applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed by her abusive husband and/or by her elder sister who demanded money from her with threats of harm. The factual background of her claim was set out at [3] to [14] of the Board’s decision.

4.  By notice of decision dated 20 March 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 5 July 2018, during which the applicant answered questions from the Board.  The Board found that the applicant was incredible, for a number of reasons.  First, the Board considered that it was inconceivable that the applicant’s sister would be so unreasonable as to threaten to use black magic or to kill her for failing to pay their mother’s medical bills, and she was unable to explain why her sister had behaved in such manner.  Second, in her information provided to the Immigration Department, the applicant had not disclosed all the details in respect of her husband’s loans and loan sharks including an incident in which the loan shark came to her house to demand repayment.  Third, the Board considered that it defied common sense that the applicant continued to remit money to her husband to repay his loans and to trust him despite that he had always defaulted on his payment obligations and had also wounded her.

6.  Thus the Board did not accept the applicant’s evidence, and found that there was no real risk of harm in the event of refoulement.  The Board also found that effective state protection was available and that internal relocation was viable.  Accordingly, in its decision dated 3 December 2018 the Board dismissed the applicant’s appeal in relation to all the applicable grounds.

Decision of the court below

7.  On 28 December 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  However, she did not put forward any grounds for judicial review either in her Form 86 or supporting affirmation.

8.  Following consideration of the documents only, on 10 August 2021 the Judge refused to grant leave for judicial review. The reasons for the refusal were set out at [15]‑[17] of the Form CALL‑1 as follows:

“ 15. The applicant applied for leave for judicial review of the TCAB decision on 28/12/2018. She had not specified any error in the TCAB decision.

16. It is the duty of the TCAB to assess credibility and establish the facts. In general, this court would not interfere. I have considered the evidence of the applicant. I agree with the adjudicator that she was not credible.

17. In my view, there is no error of law and procedure. Given the evidence, I find the decision of the TCAB reasonable.”

Appeal to this Court

9.  On 16 August 2021, the applicant filed her Notice of Appeal against the Judge’s decision.  Again she did not put forward any grounds of appeal, and simply stated that she wanted to challenge the Judge’s decision.

10.  On the same day that she filed the Notice of Appeal, the applicant consented in writing for the appeal to be disposed of on paper without an oral hearing.

11.  On 16 August 2021, the Registrar of Civil Appeals directed that the applicant must lodge her written submissions with the court by 30 August 2021, failing which the appeal would be processed based on the available documents and materials.

12.  The applicant has failed to lodge any submissions.  This appeal is therefore determined on paper without a hearing, based on the available documents and materials.

Legal principles

13.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review. 

Discussion

14.  As mentioned earlier, the applicant has not advanced any grounds of appeal in her Notice of Appeal, and has not lodged any written submissions.

15.  As there are no grounds suggested that point to any error in the Judge’s decision, the appeal should be dismissed.

16.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection, due mainly to its adverse finding as to the applicant’s credibility, resulting in the conclusion that there was no real risk of harm in the event of refoulement.  The Board also found that effective state protection was available and that internal relocation was viable in any event.  These factual findings are open to the Board on the evidence before it.  The court cannot interfere with these assessments unless they are vitiated on public law grounds.  In judicial review the court is not called upon to decide whether or not it agrees with the Board’s decision or whether the court would have come to the same conclusion had it been the decision‑maker.  The Board’s factual findings cannot be attacked on the merits except on the basis that they can be said to be irrational or so unreasonable that no reasonable tribunal would have made them.  In this case the applicant’s behaviour in continuing to send money to her abusive husband could be a symptom of codependency in an abusive or dysfunctional relationship, and on its own we would have hesitated in placing much weight on it as a pointer against the applicant’s credibility.  But the Board saw the applicant and heard her account in its fullness, an advantage not to be ignored.  We are not satisfied in all the circumstances that there are grounds — and none has been advanced by the applicant — to hold that its finding on her credibility was Wednesbury unreasonable.

17.  In any event, based on the country of origin information available to the Board, it was open to the Board to find, as it did, that effective state protection was available and that internal relocation was viable even if the applicant’s factual allegations were true.  The applicant has not raised any grounds to impugn the Board’s findings in this regard.

18.  Accordingly, we too are unable to see any reasonably arguable case for judicial review.  The Judge was right to refuse leave for judicial review. 

19.  For these reasons, the appeal is dismissed.