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CACV 2/2022
[2022] HKCA 745
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 2 OF 2022
(ON APPEAL FROM HCAL 2696 OF 2018)
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Before: Hon Kwan VP and Lisa Wong J in Court
Date of Hearing: 17 May 2022
Date of Judgment: 27 May 2022
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”) on 24 December 2021 refusing to grant leave for judicial review (“Judge’s Decision”). The intended application for judicial review sought to quash the decision (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) given on 5 November 2018, which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 12 February 2018 (“Director’s Decision”).
Bases and allegations in support of NRF Claim
2. The bases of the NRF Claim made by the applicant, a national of Indonesia and a Muslim, are fears of being harmed or even killed (1) by the family of one Nipo for having poisoned, and thereby causing the death of Nipo’s son (“Samsudim”) and (2) by her own family members because they disapproved of her marriage to a Christian in Hong Kong.
3. The circumstances giving rise to such alleged fears have been set out in paragraph 8 of the Director’s Decision, paragraphs 5 to 25 of the Board’s Decision and [5] to [6] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 3862.
4. Briefly:
(1) Samsudin wanted to marry the applicant and kept on harassing her, sometimes indecently.
(2) In late 2005, the applicant put rat poison in Samsudin’s coffee when he came to her house again. Samsudin died the next day. The autopsy found that Samsudin died of poisoning.
(3) Knowing that Samsudin had visited the applicant before he became ill, Nipo believed that she had poisoned Samsudin. He and his brother went to the applicant’s house 2 days after Samsudin’s death. They demanded the applicant to come out, yelling that they knew she had poisoned Samsudin.
(4) The applicant fled to a neighbouring village and then to Surabaya where she underwent training to work as a domestic helper. She has never returned to her home village.
(5) The applicant left Indonesia to work in Hong Kong in June 2006.
(6) The applicant’s mother and 2 siblings also had to move to another village because of the continued harassment of Nipo and his family. They have since moved back after Nipo’s death. Nonetheless, Nipo’s family was still looking for, and repeatedly threatened to kill, the applicant.
(7) While in Hong Kong, the applicant married a Christian in March 2012. However, her family in Indonesia, all of Muslim faith, disapproved of the marriage. Her mother has disowned the applicant, telling her not to come home again. The applicant contacted a friend who told her that her family in Indonesia and people in their village would harm her if she should return to Indonesia.
Entry into Hong Kong and lodgment of torture claim and NRF Claim
5. The applicant last entered Hong Kong to work as a foreign domestic helper on 29 August 2008. Her employment was prematurely terminated on 1 December 2008. She was granted an extension of stay until 13 January 2009. She did not depart and overstayed. She was arrested by the police on 13 March 2011. She was subsequently convicted of (1) breach of condition of stay by overstaying and (2) taking up unapproved employment, for which she was sentenced to two months’ imprisonment. She was discharged from prison on 1 June 2011.
6. While in custody, the applicant lodged a torture claim[1] by letters dated 31 March and 8 April 2011. She withdrew such claim on 20 September 2012. Upon her application, the Director allowed the applicant to re-open her torture claim on 22 January 2018.
7. Meanwhile, on 21 January 2014, the applicant raised the NRF Claim (the reference to which shall from now on include the applicant’s revived torture claim).
Director’s decision
8. After considering the information provided by the applicant in her supplementary claim form dated 3 January 2018 and at the screening interview with the Director’s representative(s) on 26 January 2018, at which time the applicant was legally advised and represented by the Duty Lawyer Service, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection under the unified screening mechanism: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].
9. To sum up, the Director found:
(1) The circumstances allegedly giving rise to the risks grounding the NRF Claim are largely based on hearsay information or the applicant’s own speculation.
(2) Neither Nipo’s family nor her own family had inflicted any physical violence upon the applicant.
(3) There is no ground to believe there will be a foreseeable and real risk of harm.
(4) Reasonable state protection and internal relocation alternatives would be available to the applicant in Indonesia to lower or even negate the perceived risk, if any.
Appeal to Board and Board’s Decision
10. The applicant appealed to the Board.
11. The Board conducted a rehearing of the NRF Claim, which the applicant attended to give evidence and answered the Board’s questions, through an English/Indonesian interpreter.
12. The Board dismissed the appeal on all 4 applicable grounds.
13. On the basis of the applicant’s evidence at the hearing before the Board, the Board did not accept that she has a fear of being harmed, or is at risk of being harmed, by any person in Indonesia because of her marriage to a Christian. The Board however gave the applicant the benefit of the doubt and accepted the core aspects of her case based on the past events in Indonesia. Although the Board accepted that there is a real risk that the applicant would be subjected to cruel, inhuman, degrading treatment or punishment or suffer serious harm from Nipo’s family if she returns to her home area in the reasonably foreseeable future, the Board found that the reason for the fear of persecution is not based on the applicant’s race, religion, nationality, political opinion or membership of a particular social group. Nor is there any sufficient evidence to show that there would be any state involvement in the conduct of Nipo’s family or any other person in Indonesia. Further, reasonable state protection would be available to the applicant in Indonesia. It would also be safe and reasonable for the applicant to relocate to other cities in Indonesia such as Jakarta, Surabaya or Bali.
Application for leave for judicial review and Judge’s Decision
14. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2696/2018 on 28 November 2018, the applicant applied for leave for judicial review of the Board’s Decision without stating any proposed ground. Her supporting affirmation filed on the same day merely exhibited the Board’s decision and a 131-page hearing bundle.
15. The applicant did not request for an oral hearing. After considering the material before him, the Judge refused leave on paper in the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision.
Appeal to Court of Appeal - grounds of appeal and submissions
16. By the notice of appeal filed herein on 3 January 2022, the applicant appealed against the refusal of leave for judicial review, without stating any ground of appeal.
17. In her written submission dated 7 February 2022, other than tracing the procedural background, the applicant complained that the Board has not allowed even 1% of the cases and that the High Court only followed the Board’s decision in full.
18. The appeal was heard on 17 May 2022. The applicant appeared in person and had nothing to add in further support of the appeal.
Discussion
19. In view of the manner in which the applicant has conducted the application before the Judge and the appeal before us, we can dispose of this matter shortly.
20. First, the role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.
21. Second, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere if and only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.
22. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].
23. The applicant had not in the Form 86 or the supporting affirmation before the Judge identified any error of law, procedural unfairness or irrationality on the part of the Board in dismissing her appeal against the Director’s Decision.
24. That being the case, the applicant’s proposed judicial review was hopeless and leave was rightly refused. In such circumstance, we cannot see how it can be contended that the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. The applicant certainly did not in the notice of appeal or written submission before us identify any such bases upon which the Court of Appeal can disturb the Judge’s Decision.
25. With regard to the matters asserted by the applicant in her written submission, first, neither of them had been raised before the Judge. Second, they are too vague and lacking in particulars to merit any serious consideration.
26. In any event, we have anxiously examined the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
Disposition
27. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
(Susan Kwan)
Vice President
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(Lisa Wong)
Judge of the
Court of First Instance
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The applicant, unrepresented, appeared in person
[1] Pursuant to article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Odinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the HKBORO.
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