RE FAJAR-KOMARIYAH-BT-WAAN-KAFI

CACV 441/2024, [2025] HKCA 441

On Appeal From [2024] HKCFI 2621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 441 OF 2024

(ON APPEAL FROM HCAL NO 1114 OF 2024)

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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 10 October 2024 ([2024] HKCFI 2621)  (“the Leave Decision”)  refusing to grant extension of time and dismissing 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 16 August 2023 (“the Board’s Decision”), whereby the Board dismissed her appeal against the decision of the Director of Immigration (“the Director”)  dated 10 January 2023 (“the Director’s Decision”)  refusing her non-refoulement claim.

2.  By a Request for Dismissal of Appeal filed on 2 December 2024, the applicant requested for dismissal of her appeal.

3.  On the basis of her said request to dismiss her appeal, we dismiss the Notice of Appeal filed on 22 October 2024.[1] In any event, her appeal also fails for lack of merit, which we will explain further below.

BACKGROUND

4.  The applicant is a national of Indonesia.  She came to Hong Kong to work as a domestic helper on 24 July 2019.  He employment contract was terminated on 7 August 2022 and she had to depart on or before 12 October 2022.  She failed to do so and was arrested by police.  On 20 November 2022, she lodged her non-refoulement claim by written signification, on the basis that, if refouled, she would be harmed or killed by her husband because she failed to remit money to him.

5.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

6.  The applicant then appealed against the Director’s Decision to the Board.  The applicant was absent during the hearing before the Board on 7 July 2023.  By the Board’s Decision, her appeal was dismissed.  As summarised by the Judge at [8] of the Leave Decision, the Board found that (a)  the grudge between her and her husband was a personal grudge, not within the context of the Convention [90]; (b)  state protection would be available to her if she returned to Indonesia [92]; and (c)  the applicant could not be classified as a refugee under the Convention [93].

THE JUDGE’S DECISION

7.  On 12 July 2024, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  By that time, the applicant was late for 6 months in taking out her application.  She gave no ground of review in her Form 86.  In her supporting affirmation, she merely stated that her life would be in danger upon refoulement and did not give any reason for her delay.

8.  As she did not request for an oral hearing, the Judge determined her application on paper.  By the Leave Decision, the Judge refused to grant leave to apply for judicial review.  His reasons were stated at [12] - [18] of the Leave Decision:

“12.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

13.  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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.’

16.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

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

DISPOSITION

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

THIS APPEAL

9.  In her Notice of Appeal filed on 22 October 2024, she merely stated that:

“THE HIGH COURT DID NOT CONSIDER MY JR. ADJUDICATOR DID NOT GIVE ME CORRECT DECISION. HIS DECISION IS FULL OF WRONG. PLEASE GRANT MY LEAVE.” (sic)

10.  On 2 December 2024, she filed a Request for Dismissal of Appeal.

DISCUSSION

11.  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)]).

12.  In our view, the applicant’s appeal has no substance. At the outset, her assertions are all 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].  More importantly, she failed to identify any error with specific particulars against the Leave Decision.  Her assertions are not valid grounds of appeal.

13.  The applicant’s appeal has no merit and is hereby dismissed.