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

CACV 457/2024, [2025] HKCA 201

On Appeal From [2024] HKCFI 2888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 457 OF 2024

(ON APPEAL FROM HCAL NO 2070 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge R. Lai (“Judge”) on 18 October 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 29 December 2017. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 1 September 2016 and 1 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant, aged 41, is an Indonesian. She arrived in Hong Kong on 25 October 2011 to work as a foreign domestic helper. Her contract was terminated pre-maturely on 18 February 2013 and she had overstayed since 5 March 2013. The applicant was arrested by the police on 9 March 2013 and she lodged her non-refoulement claim on 3 March 2014. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband, who used to abuse her in the past.

3.  The applicant’s claim was initially assessed by the Director with reference to BOR 3 risk,[2] persecution risk[3] and torture risk[4] (i.e. without BOR 2 risk). By notice of decision dated 1 September 2016, the Director rejected her claim.

4.  On the Director’s own initiative, the applicant was invited to submit any further material she had for consideration of her claim under BOR 2 risk, to which she did not respond. By notice of further decision dated 1 August 2017, the Director rejected the applicant’s claim in relation to BOR 2 risk.

5.  The applicant appealed to the Board against the Director’s decisions of 1 September 2016 and 1 August 2017. An oral hearing was held on 27 November 2017, during which the applicant gave evidence and answered questions from the Board. In its decision dated 29 December 2017, the Board found that the past ill-treatment by the applicant’s husband was not serious and that the risk of harm she faced upon her return to Indonesia did not meet the requisite minimum threshold of severity for claiming protection under any of the risks being considered. In any event, both state protection and internal relocation would also be available. Accordingly, the Board dismissed the appeal and affirmed the decisions of the Director.

The Judge’s decision in the court below

6.  Over 15 months beyond the 3-month time limit for bringing judicial review proceedings as prescribed by Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A), on 19 July 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. In her supporting affidavit, she merely stated that her life would be in danger upon return to her country and she did not provide any explanation for her delay in filing the Form 86.

7.  As the applicant failed to attend the hearing scheduled on 3 October 2024, the Judge considered the application on the basis of the documents alone. On 18 October 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review. The judge found that the 15-month delay was serious and substantial, so that the applicant’s application was liable to be dismissed solely on such basis. For the sake of completeness, the Judge proceeded to consider the merits of her application, which were set out in [38] to [40] and [45] to [48] of the Form CALL-1 as follows:

“ 38. In a judicial review, the court does not step into the shoes of the decision makers.

39. In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14 (1) that:

‘ The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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.’

40. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

……

45. Having rigorously examined the Board’s Decision and the DOI Decisions with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

46. The Board found that the Applicant had not been severely injured by Husband. The assault from Husband did not attain a minimum level of severity. The Applicant failed to establish a personal risk of her right to life being violated. Her fear of ill-treatment was purely domestic and private and no government officials had been involved. It was also not on account of race, religion, nationality, membership of a particular social group or political opinion. Both state protection and internal relocation were available to the Applicant.

47. It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review is not reasonably arguable.

48. The Form 86 was filed out of time without leave of the court and having considered the Board’s Decision and the DOI Decisions with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.”

Appeal to this Court

8.  On 1 November 2024, the applicant filed a notice of appeal against the Judge’s decision. She asserted that the Judge failed to consider her judicial review application and that the Board’s decision was wrong. However, no evidence in support was provided.

9.  On 2 December 2024, however, the applicant filed a Request for Dismissal of Appeal requesting that her appeal be dismissed.

Discussion

10.  Although the applicant has made a written request for the dismissal of her appeal, we shall nevertheless briefly discuss the merits of her appeal.

11.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

12.  In the present case, the Board found that the past ill-treatment by the applicant’s husband was not serious and that the risk of harm she faced upon returning to Indonesia did not meet the requisite level of severity for claiming non-refoulement protection. In any event, both state protection and internal relocation would be viable options. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.

13.  The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision. Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision.

14.  Pursuant to the applicant’s request, and for these reasons, the appeal is dismissed.