RE KHOLIPAH

CACV 238/2024, [2025] HKCA 440

On Appeal From [2024] HKCFI 1462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 238 OF 2024

(ON APPEAL FROM HCAL NO 1510 OF 2019)

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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 31 May 2024 ([2024] HKCFI 1462)  (“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 27 May 2019 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 16 November 2018 (“the Director’s Decision”)  refusing her non-refoulement claim.

2.  The appeal was listed to be heard on 25 September 2024.  The applicant was directed to lodge two sets of skeleton argument on or before 28 August 2024 and was warned that if she failed to do so, she would be deemed to have waived her right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The directions and the warning were communicated to the applicant by the Notice of Hearing dated 12 August 2024.  However, the applicant did not lodge any skeleton argument in support of her appeal.

3.  As the applicant failed to lodge a skeleton argument by the stipulated time, she was deemed to have waived her right to have an oral hearing and elected to have her appeal disposed of on paper.  The hearing date was thus vacated on 29 August 2024.

4.  Subsequently, this court was notified by the Immigration Department on 10 February 2025 that the applicant was removed voluntarily back to her home country.

BACKGROUND

5.  The applicant is a national of Indonesia.  She had worked as a foreign domestic helper in Hong Kong intermittently since July 2010.  She last entered Hong Kong on 14 June 2015.  On 24 July 2015, her employment contract was prematurely terminated and she overstayed in Hong Kong since 8 August 2015.  She surrendered to the Immigration Department on 21 August 2015.  She made a non-refoulement claim by way of written representations respectively dated 25 April 2016 and 1 February 2018, on the basis that, if refouled, she would be harmed or killed by her parents’ creditor because she and her father were unable to repay the loan and she refused to marry the loan shark as an alternative.  Details of the applicant’s claim were summarised by the Judge at [4] - [9] of the Leave Decision.

6.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

7.  On 22 November 2018, the applicant appealed the Director’s Decision to the Board.  On 19 March 2019, the applicant attended an oral hearing and gave evidence before the Board with the assistance of an Indonesian interpreter.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [13] - [16] of the Leave Decision:

“13. During the hearing, the applicant revealed that the frequency of threats by the loan shark against her family reduced since the end of 2015 and he even stopped approaching her family in 2016 [30]-[31]. The Board considered the action of the loan shark suggested that he no longer had interest in the applicant and lacked intention on harming her [32], [44]. The applicant also varied her evidence saying that her family put no pressure on her in marrying the loan shark [33].

14. When queried how the applicant could afford her tuition fees for an off-campus course from Upper Iowa University, she claimed that she was financially supported by a mysterious man. Yet, the Board found it difficult to understand why the applicant did not prioritise settling the loan from the loan shark when she was able to access significant ongoing funds in Hong Kong [38]-[39], [43]. In any event, it had doubts about the existence of the loan given that the applicant was unable to provide any of its details [41]-[42]. The Board also found the timing of the PC Loan suspicious, as it was obtained only a month after the loan from the loan shark [46]-[47].

15. Based on such findings, the Board did not accept the existence of the loan as well as the claimed threats by the loan shark on her and her family. They also considered that the applicant faced no real chance of harm if she returned to Indonesia [50]-[52].

16.   The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [53]-[60], BOR 2 and BOR 3 risk [61]-[68] or Persecution risk [69]-[72]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.”

THE JUDGE’S DECISION

8.  On 3 June 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  She gave no ground of review in his Form 86.  In her supporting affirmation, she claimed that she was still afraid of the demands of the loan shark and that she wanted to further her studies in Hong Kong.

9.  As the applicant did not request for an oral hearing, the Judge considered her application on paper.  On 31 May 2024, the Judge refused to grant leave to apply for judicial review.  His reasons were stated at [19] - [25] of the Leave Decision:

“19.  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. 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).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she understands the Board’s Decision and she is unable to say whether the Board was wrong. However, she wants the Court to re-consider her case.

21.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …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 the decision of the Board.’

22.  For the reasons given by the Board above, the Board rejected the applicant’s factual evidence in support of her claim. In the circumstances, the applicant has no factual basis for her claim.

23.  The applicant has raised no valid reason to challenge the Board’s Decision. There is nothing amiss for the Board to have come to its conclusion for the evidence before it. There is simply no reason for this Court to interfere with the Board’s finding of the facts.

24.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

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

THIS APPEAL

10.  In her Notice of Appeal filed on 12 June 2024, the applicant mainly complained that the Board’s Decision was unreasonable in rejecting her claim as the Board failed to consider and weigh the serious threats and harm she would face upon refoulement.  She further asserted that the Board failed to adequately consider her claim in a fair and impartial manner and that the Board failed to consider her testimony and evidence.  She also claimed that the Board’s Decision was based on incorrect assumptions and findings about her financial situation.  She then asserted that the Director was biased which undermined the integrity of the process and denied her a fair outcome.

11.  As mentioned above, the applicant did not lodge any written submissions in support of her appeal.

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, supra, at [14(6)]).

13.  In our view, the applicant’s appeal has no substance.  At the outset, all her allegations are general, vague and bare which are not proper grounds of appeal.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  She has also failed to point out any error of the Leave Decision.  Her intended appeal must fail on these bases alone.

14.  Further and in any event, it is trite that assessment of evidence, country of origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst, supra, at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  The Board had considered all the evidence and materials before it as well as her oral evidence given during the hearing in detail (see [12] - [52] of the Board’s Decision)  and gave reasons for refusing her appeal and non-refoulement claim.  We agree with the Judge that there is no reason to interfere with the Board’s finding of the facts.  We have considered the Leave Decision carefully and are unable to see any arguable grounds of appeal against the decision.  We see no basis to disturb the Leave Decision.

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

16.  As mentioned above, on 10 February 2025, the court was notified by the Director that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.