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

CACV 389/2023, [2024] HKCA 201

On appeal from [2023] HKCFI 2839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 389 OF 2023

(ON APPEAL FROM HCAL NO 944 OF 2021)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 16 November 2023, Deputy High Court Judge KW Lung refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 27 November 2023.

2.  The applicant is a national of Indonesia. She is 42 years old. She entered Hong Kong on 15 May 2018 to be employed as a foreign domestic helper but her contract was prematurely terminated on 19 July 2019. She has overstayed since 3 August 2019. Nearly a year later on 20 August 2020, the applicant surrendered to the Immigration Department. On 21 September 2020, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband, Sukarmin, because he was abusive after drinking and she failed to pay him money upon demand.

3.  The applicant consented to the disposal of this appeal on paper by the Court of Appeal. She lodged her written submissions on 11 December 2023 pursuant to the directions of the Registrar of Civil Appeals.

The Director’s decision

4.  By a Notice of Decision dated 14 January 2021, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

5.  The Director found that the applicant’s level of risk of being harmed or killed by her husband upon her return to Indonesia would be low, given the absence or low intensity and frequency of past ill-treatment. The Director also found that there was no evidence indicating state involvement in the private dispute between the applicant and her husband. The Director further held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 1 April 2021. The Board found that the injuries the applicant sustained as a result of her husband’s assaults had not attained the requisite minimum level of severity for non-refoulement protection. The Board further found that there is no real risk that the applicant would face any of the proscribed forms of harm if refouled. In any event, state protection was available to the applicant and she could consider relocating to other cities in Indonesia, such as Surabaya or Palembang, upon refoulement. The Board therefore rejected her appeal on 21 June 2021.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 5 July 2021 to seek leave to apply for judicial review against the Director’s decision and the Board’s decision. She did not put forward any specific grounds for her intended challenge.

The Judge’s decision

8.  The applicant did request an oral hearing. She appeared and attended a hearing before the judge on 28 August 2023. At the hearing, she made oral submissions that she was scared to go back to her home country as she did not have family there and she sought permission to stay in Hong Kong for another year.

9.  The judge considered the application and the oral submissions by the applicant. The judge held that the Board’s decision is reasonable and the applicant had raised no valid ground to challenge the Board’s decision. As the applicant failed to show any realistic prospect of success in her intended judicial review, the judge dismissed the leave application on 16 November 2023.

Grounds of appeal

10.  In the Notice of Appeal filed on 27 November 2023, the applicant merely stated as her grounds of appeal that she is not satisfied with the judge’s decision and that the judge’s decision is wrong, but without giving any particulars or evidence in support.

11.  In her written submissions lodged on 11 December 2023, she contended that:

(1)  the Board made many errors;

(2)  the court did not consider her arguments and did not give her an oral hearing; and

(3)  the court failed to find the errors of the Board and the judgment was wrong.

Legal principles

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.  The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers 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 country of origin information 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.

14.  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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

15.  The applicant’s grounds and submissions in this appeal are just bare assertions without basis. Contrary to her submissions, she attended a hearing before the judge on 28 August 2023 and made oral submissions. Besides, the applicant has not provided any evidence or particulars to show that the judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  We are of the view that no viable ground has been put forward to reverse the decision of the judge. We therefore dismiss the appeal.