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

CACV 123/2024, [2024] HKCA 837

On Appeal From [2024] HKCFI 859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 123 OF 2024

(ON APPEAL FROM HCAL NO 1413 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 K W Lung (“Judge”) on 20 March 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 12 April 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 30 July 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia born in 1977.  She first entered Hong Kong on the strength of her Indonesian passport in June 2013 to work as a foreign domestic helper.  The applicant last entered Hong Kong on 15 September 2014 and was permitted to remain as a foreign domestic helper until 15 September 2016 or two weeks after termination of the employment contract, whichever is earlier. Her employment contract was prematurely terminated on 3 January 2015 and she had overstayed since 18 January 2015.  On 6 January 2016, the applicant surrendered to the Immigration Department for overstaying and she lodged her non-refoulement claim by way of written representation on 13 June 2016.  Her claim was made on the basis that if she returned to Indonesia, her creditor (Yohana) would harm or kill her due to the outstanding debt owed to her. The factual background of the applicant’s claim was set out at [17] to [24] of the Board’s decision.

3.  By notice of decision dated 30 July 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 14 December 2018, during which the applicant gave evidence and answered questions from the Board.  At the oral hearing, the applicant adopted and confirmed all the information contained in the hearing bundle to be true and correct and she clarified that the bank was unable to do anything to her regarding her outstanding loan due to her bankruptcy.  She further confirmed that she received the loan from Yohana in January 2013 and had repaid nothing to her.

5.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Indonesia.  It found there was in fact no real risk of harm if the applicant returned to Indonesia, because this was a loan dispute, there were no harsh conditions to show that Yohana was a loan shark, Yohana did not threaten or harm the applicant when she was unable to make any repayment of the loan, Yohana only threatened to put the applicant in jail if she returned to Indonesia as a result of failing to repay the loan, and there was no support for the applicant’s belief that the authorities would not assist her.  Further, the Board considered that internal relocation was clearly a viable option for the applicant.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Indonesia.  By its written decision dated 12 April 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decisions in the court below

7.  On 24 May 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Director’s decision.  She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, she simply stated that she would like to reject and review the Director’s decision and annexed the Board’s decision.  It is clear that the applicant wished to apply for judicial review of the Board’s decision and not the Director’s decision, and the Judge proceeded on this basis.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 20 March 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [17] of the Form CALL-1 as follows:

“ 13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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. For the reasons given in paragraph 9, the Board rejected her evidence. The applicant fails to raise any valid reason to challenge the Board’s Decision.

17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Appeal to this Court

9.  On 2 April 2024, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that the Judge failed to find that the Board did not make a correct decision and that the Board’s decision was wrong.

10.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.  The applicant has lodged written submission in which she merely repeated the basis of her non-refoulement claim, and claimed that the Board did not look at her claim, that the Judge did not grant leave, and that she did not receive justice.

Discussion

12.  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.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it was merely a loan dispute between the applicant and her creditor, the creditor had only threatened to put the applicant in jail for her failure to repay the loan and no other harm towards the applicant, and state protection and internal relocation were viable options for the applicant.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. As for the ground advanced merely stating that the Board made the wrong decision, it consists of mere general and bald assertions regarding the decision of the Board without any particulars.  It does not constitute a viable ground of judicial review.

14.  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.    

15.  The applicant’s appeal is accordingly dismissed.