RE KARTINI

CACV 91/2025, [2025] HKCA 699

On appeal from [2025] HKCFI 627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 91 OF 2025

(ON APPEAL FROM HCAL NO. 2330 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 14 February 2025[1] refusing to give her leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 5 July 2019 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 20 March 2018 which rejected her non-refoulement claim.

The applicant’s claim

2.  The applicant is a national of Indonesia, aged 43. She last entered Hong Kong on 26 September 2011 to work as a foreign domestic helper.  After her employment contract was prematurely terminated on 3 June 2013, she did not depart and has since overstayed.  She surrendered to the Immigration Department on 3 March 2016. She lodged a non-refoulement claim on 20 June 2016. 

3.  The applicant's claim was on the basis that, if refouled, she would be harmed or sent to jail because of her inability to repay a loan of one million Indonesian Rupiahs (“the Loan”) owed to the BMT Syariah Bank (“the Bank”).  The details of her claim were set out at [7] to [44] of the Board's decision.

4.  In gist, the applicant claims that in around 2011 she was deceived by a fraudster into buying a piece of land.  To finance the purchase, she took out the Loan from the Bank, using the family home as a collateral and with her sister acting as a guarantor.  When she failed to make repayment, the debt collector of the Bank, Mr. Selamet, and his associates intimidated her and threatened to harm her and put her in jail.  She therefore came to Hong Kong to work as a domestic helper.  When her contract was terminated in June 2013 and she could no longer remit money home to repay the Bank, her sister was imprisoned for six months.  The applicant says she fears she will be charged by the government over the unpaid loan upon her return to Indonesia.

The Director’s and the Board’s decision

5.  By a decision dated 20 March 2018, the Director rejected the applicant’s claim on the torture risk^[2], BOR 3 risk^[3], BOR 2 risk^[4] and persecution risk^[5] grounds. 

6.  The applicant appealed to the Board.  A hearing took place on 30 January 2019 during which the applicant testified and answered questions from the Board.  By a decision given on 5 July 2019, the Board dismissed her appeal.

7.  The Board did not find the applicant a truthful witness, having regard to significant and material inconsistencies between the claim she made to the Director and her evidence before the Board, including the terms of the loan, the incidents of threat and the events associated with her sister's imprisonment, which cast doubt on the veracity of her evidence.  The Board also found it implausible that while her sister was imprisoned, the applicant's family home was not taken to settle the Loan.  The Board rejected the applicant’s factual claim in its entirely.  It did not accept that the applicant had borrowed any loan, her sister was imprisoned due to default in repayment, the Bank or Mr Selamet had harassed or threatened her, she would be harmed or imprisoned if she returned to Indonesia, nor that anyone in Indonesia would have any adverse interest in her.  The Board did not accept, on the basis of the country-of-origin information that there exists in Indonesia a pattern of gross, flagrant or mass violations of human rights indicating that the applicant would face a real risk of harm for the reasons claimed.  The Board concluded that the applicant has failed to establish the requirements for non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.  By a Form 86 dated 13 August 2019, the applicant applied for leave to judicially review the Board's decision. The grounds of her application were set out in the written submissions lodged in June 2021 and February 2024, which the Judge summarised in [18] of the Form CALL-1 dated 14 February 2025 as follows:

“18. ... In her 2021 submission, she advanced the following grounds:

(i) The Board had unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement;

(ii) The Board acted in a procedurally unfair manner in dealing with her appeal;

(iii) The Decision is irrational;

(iv) The Board failed to meet the greater care and duty owed to an unrepresented litigant;

(v) The Applicant was confused at the hearing because the hearing bundle was delivered late;

(vi) The Applicant answered all the questions honestly and it was unfair that the Board found her credibility questionable;

(vii) The Board relied significantly on source of news which is not officially recognised or is simply hearsay or outdated leading to the Board making speculations that it is safe for her to return to Indonesia.

In her 2024 submission, she repeated most of the above grounds and added the following grounds:

(viii) The Applicant does not know thoroughly how her case was determined and there is no mechanism that allows unrepresented litigants to understand more about their claims; (ix) Lack of language and legal assistance; the Decision was never read to her in her own language; and

(x) The discriminatory act of the authorities towards claimants by aiming at quick disposal of claims is unacceptable.”

9.  The Judge heard the application at an oral hearing held on 22 January 2025 which was attended by the applicant.  The Judge recorded at [19] of the Form CALL-1 that at the hearing “the applicant said she had no complaints about errors of law, but would leave it to the Court to examine the [Board’s decision] for such errors.  She confirmed she had no complaint about procedural unfairness or irrationality in the [Board’s decision].”

10.  The Judge refused to give leave to the applicant to apply for judicial review and gave his reasons at [20] to [31] of the Form CALL-1 as follows:

“Discussion

20. Except for Grounds (6), (8) and (9), all the other seven grounds are general and bare assertions with no particulars. When asked for particulars, all the Applicant could give is that she did not want to go back to Indonesia because her problems are not solved. Her confirmation in paragraph 19 contradicts the ten grounds contained in her two earlier submissions.

21. Apart from lacking in particulars, Grounds (1), (7) and (10) are unsubstantiated for obvious reasons. In respect of Ground (1), the Board gave full reasons for its Decision. It found the Applicant incredible and her evidence unreliable. In short, it found the Applicant had failed to establish the factual basis to support her claim for protection under any of the four applicable grounds under the USM. This is not a case where the Board made a finding of fact without any evidential basis. On the facts as found by the Board, it could only reject her claim as a matter of law. The Board has no discretion to allow her claim instead. There is no substance in this ground.

22. In respect of Ground (7), the source of news mentioned under this ground must be the country of origin information ("COI"). The Board did not arrive at the Decision by relying on any COI. It was not the Board's finding that according to the COI it was safe for the Applicant to return because of availability of state protection or internal relocation. It reached its conclusion on the basis that the Applicant had failed to discharge the burden of proving the factual basis in support of her claim to protection. This ground rested on the wrong premise.

23. In respect of Ground (10), no particulars were given as to what were the discriminatory acts complained of and there is also no evidence that such discriminatory acts indeed brought about quick disposal of non-refoulement claims. Indeed, quick disposal of litigation and procedural economy are always targets of the courts.

24. As for Ground (6), it is a direct challenge of the finding of fact of the Board, which is not permissible, save for errors of law, procedural unfairness or irrationality in the Decision. No such vitiating elements have been proved by the Applicant.

25. As for Ground (8), the Director used 17 pages in his Notice to set out the Applicant's background, the factual background of her claim, her claim as she alleged, the Director's analysis of the evidence and reasons for its finding. The Applicant was legally represented by the Duty Lawyer Service at the material time. The Notice is usually delivered to the claimant via the Duty Lawyer Service. It is the standard practice of the Duty Lawyer Service to explain the Notice to claimant and advise on the merits of appeal. It lies ill in the Applicant's mouth to allege that she does not know thoroughly how her case was determined and that there is no mechanism that allows unrepresented litigants to understand more about how their claims were decided. The Court notes that part of the applicant's complaint is about absence of any mechanism that allows her to understand more about her claim. This complaint is incomprehensible. If she does not understand her own claim, who else could?

26. As for the Applicant’s complaint about lack of legal representation under Ground (10), it was held by the Court of Appeal in Re Zafar Muazam^[6], Re Zunariyah^[7], Re Zahid Abbas^[8], Re Tariq Farhan^[9], and Re Lopchan Subash^[10], neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.^[11] nor the judgment of FB v Director of Immigration^[12] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the claimant is prejudiced for want of legal and language assistance.

27. The Applicants had the benefit of legal representation in presenting her case to the Director. All the benefits that legal representation could have afforded her were contained in the written submissions, the NCF and answers in the screening interview given by her under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite she was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded her were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the hearing before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

28. As for the Applicant’s complaint about lack of language assistance under Ground (10), as a matter of law a claimant is not entitled as of right to language assistance at any time whenever he wants it. In Karamjit Singh^[13], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, she has to live with or cope with her language disability. She cannot expect to have the luxury of any documents to be fully translated into her native language for her benefit as and when she requires. She has to use her own resources or find assistance herself from among her friends and her ethnic community. The Indonesian community is probably one of the largest non-local communities in Hong Kong. In addition, she has ten years formal education and eleven years experience living in English speaking societies. She must have a working knowledge of the English language. Indeed, the Applicant was able to file two adequately well written submissions in English. Her language difficulty is exaggerated and unreal.

29. Furthermore, the hearing bundle is basically made up of her NCF, the record of her screening interview, the Director’s Notice, her notice of appeal and the COI. The Applicant knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service. She knows what is contained in the record of screening interview which she attended with the assistance of an interpreter and legal representation. The record had been read back to her in her own language, and she signed to acknowledge that she understood and agreed with its contents and that no amendment was necessary. She knows what is written in her notice of appeal prepared by herself. Recognizing the limitation in her foreign language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, whenever appropriate to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips. The Notice and COI are in English and unfortunately have not been translated. The Duty Lawyer Service had most probably discussed the contents of the Notice and COI with her when representing her before the Director. As mentioned above, she should not do nothing and expect the host country would translate the documents to her as and when she requires. She has to rely on her own means and resources or find assistance herself from among her friends and her ethnic community.

30. In Ground (5), she complained that she was confused as the hearing bundle was delivered late and she was not provided with language assistance. She gave no particulars, not to mention evidence, as to when she was served the hearing bundle. Usually, the bundle is delivered within ten to fourteen days before the hearing. But most importantly, it must be noted that the Notice had been delivered to her on 20 March 2018, more than ten months before the hearing before the Board. The Notice must have been explained to her by the Duty Lawyer Service. As explained above, she must have knowledge of all the documents in the hearing bundle, such as her NCF, the record of screening interview, the notice of appeal etc. As mentioned above, her language difficulty is exaggerated and unreal. It therefore lies ill in her mouth to say she was confused.

Overall scrutiny

31. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence properly, tested it against common sense and inherent probability.  It found the Applicant was not telling the truth and that her evidence is only partly credible but partly not.  It gave detailed reasons for its finding.  In brief, it accepted the background of the claim as asserted by the Applicant but rejected her evidence about the loan from the bank and the harassment by the staff representing the bank.  These are findings of fact which the Court may not interfere.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  For the above reasons, the Applicant’s leave application is refused.”   

This appeal

11.  On 25 February 2025, the applicant filed a Notice of Appeal to appeal the Judge's decision.  She stated in the Notice of Appeal that she disagreed with the decisions of the Board and the Director, and that her case was not determined fairly as the Board has failed to meet the greater care and duty owed to her as a self-represented claimant.

12.  Her written submissions lodged on 13 June 2025 are substantially the same as the written submissions lodged in the Court of First Instance.  In summary, she asserted that:

(1) Her case has not been determined fairly and there should be a fair mechanism to enable unrepresented litigants to understand more about their claims;

(2) There was a lack of language and legal assistance. The Board's decision has never been read to her in her language;

(3) The Board had unlawfully fettered its discretion by refusing the appeal on the ground that it was not satisfied with the requirement. The adjudicator had acted in a procedurally unfair manner and his decision was unreasonable or irrational as a result of procedural errors or unfairness, and had failed to meet the greater care and duty owed to a self-represented claimant.

(4) The discriminatory act of the authorities towards non-refoulement claimants in aiming at a quick disposal of their claims is unacceptable.

13.  At the hearing of the appeal, the applicant did not have anything to add to her written submissions.

Our reasons for decision

14.  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 of Appeal’s role is not to examine the Board’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].

15.  Further, it is well established that assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

16.  In light of the established legal principles set out above, we are of the view that the grounds put forward by the applicant are not arguable.   Our reasons are as follows:

(1)  The complaints made in the Notice of Appeal and the written submissions are directed solely at the decisions of the Board and the Director.  In respect of the decision of the Director’s decision, as the applicant had appealed it to the Board, it was superseded by the Board’s decision which represents the final decision on the claim at the end of its processing: Re Moshsin Ali [2018] HKCA 549 at [45].  It is not open to the applicant to challenge the Director's decision by way of judicial review.  The complaints levelled against the Director’s decision are therefore irrelevant and cannot serve to advance the applicant’s appeal.

(2)  As for the Board’s decision, the Judge has in the Form CALL-1 given detailed reasons for rejecting the complaints made against it.  In this appeal, the applicant merely repeats her complaints but fails to point to any error in the Judge’s reasoning and decision.  This is insufficient as she has not demonstrated that her appeal has merits. 

(3)  In any event, we agree with the Judge that the grounds relied on by the applicant are unarguable.      

(4)  First, the assertion that her case was not determined fairly or that the Board has unlawfully fettered its discretion is vague and devoid of particulars.  It is clear from the Board's decision that the factual basis of the applicant's claim was rejected as being incredible due to the material inconsistencies and inherent implausibility discussed in [35] to [86] of the Board’s decision.  This is an assessment and finding that the Board was entitled to make for the reasons that it has given.  The applicant’s grounds for seeking relief in the court below and her grounds of appeal do not engage with the reasons and analysis given by the Board and do not show in what way the Board has erred in its assessment of the evidence. 

(5)  Second, on the complaint about lack of language assistance, this court has consistently held that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see, Cucan Fatimah v Torture Claims Appeal Board [2019]　HKCA 1264 at [20].  There is nothing in the Board's decision to indicate that the applicant had problem understanding the questions posed by the Board or the proceedings at the Board’s hearing.  The applicant also fails to show how the alleged lack of language assistance after the appeal to the Board has inhibited her ability to proceed with the leave application before the Judge.  We note that the documents filed by the applicant, including the affirmation in support of the leave application, the Notice of Appeal and the written submissions, were all written in English.  This suggests that the applicant has means of accessing language assistance.  In addition, at the hearing before the Judge, the applicant was assisted by an interpreter.

(6)  Third, on the complaint about lack of legal assistance, this court has repeatedly held that the high standard of fairness does not mandate that a non-refoulement claimant must be provided with free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at [18].  The applicant already had the benefit of legal representation in presenting her case to the Director.  The assertions of unfairness and discrimination in the quick disposal of non-refoulement claims are also not supported by particulars.

17.  Having considered the materials before us, we agree with the Judge that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused.

18.  For the above reasons, we dismiss the applicant’s appeal.

[1] [2025] HKCFI 627

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] 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.

[6] cacv 2/2018, (unreported) 23 March 2018

[7] [2018] HKCA 14

[8] [2018] HKCA 15

[9] [2018] HKCA 17

[10] [2018] HKCA 37

[11] (2004) 7 HKCFAR 187

[12] HCAL 51 of 2007

[13] CACV 78/2018