SUGIYANTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 575/2024, [2025] HKCA 491

On Appeal From [2024] HKCFI 3404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 575 OF 2024

(ON APPEAL FROM HCAL NO 2251 OF 2019)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 27 December 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 18 July 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 5 December 2018.

BACKGROUND

2.  The Applicant is a national of Indonesia. She last entered Hong Kong on 16 November 2008 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 9 March 2009. She had overstayed since 13 March 2009. On 26 April 2010, she was arrested by the police. On 19 July 2010, she raised a torture claim[1], which was rejected by the Director on 28 June 2012. On 22 November 2016, she lodged a non-refoulement claim, which was assessed on all applicable grounds other than the risk of torture. She claimed that, if refouled, she would be harmed or killed by her boyfriend (Arman) for being unable to make payment to him for some building materials which he had previously provided for renovation of her house. Details of the Applicant’s claim have been summarised by the Judge at §§3-5 of his decision dated 27 December 2024.

3.  By a Notice of Decision dated 5 December 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 18 July 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§10 and 11 of his decision, as follows:

“[10] The Board found that the [Applicant] at most experienced verbal threats from her boyfriend over the phone and there was also no evidence suggesting that she would be at risk from the Indonesian authorities. In any event, state protection and internal relocation would be available according to the country of origin information [38]-[61].

[11] Based on such findings, the Board rejected the [Applicant’s] claim on Persecution risk, BOR 2 and BOR 3 risk. The [Applicant’s] appeal was therefore dismissed and the Director’s Decision was confirmed.”

THE JUDGE’S DECISION

5.  On 7 August 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. The Applicant’s grounds for seeking relief, as raised in her supporting affirmation, have been summarised by the Judge at §13 of his decision, as follows:

“(1) the Board had unlawfully fettered his/her discretion by refusing her appeal;

(2) the Board failed to [discharge] its greater duty owed to her, a self-represented clamant;

(3) the Board’s Decision is unreasonable or irrational in the public law sense, or as a result of procedural errors or unfairness;

(4) the Board failed to attain advanced standards of fairness as life limbs are in jeopardy; and

(5) the adjudicator acted in a procedurally unfair manner in the dealing with her appeal and he had relied on the source of news which is not officially recognized, or it is simply hearsay.”

6.  On 27 December 2024, the Judge refused to grant leave to apply for judicial review for the following reasons:

“[14] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[15] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] said she did not think the Board was wrong. Nevertheless, she asked the Court to review the Board’s Decision.

…

[17] The [Applicant’s] grounds under paragraph 13 are her bare assertions without any evidence in support. In view of what she said in Court, I find that she failed to raise any valid reason to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s Decision.

[18] The [Applicant] fails to show that she has any realistic prospect of success in her intended judicial review of the Board’s Decision.”

THIS APPEAL

7.  In her Notice of Appeal filed on 31 December 2024, the Applicant stated that she did not agree with the decision of the court, and repeated her fear of returning to Indonesia on the ground that she would be killed by her enemies in her home country.

8.  The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 3 April 2025. Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  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 Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

12.  The Applicant’s appeal has no merit, and is dismissed.