Re Nuryanti

CACV 395/2020

[2021] HKCA 224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 395 OF 2020

(ON APPEAL FROM HCAL 2881/2018)

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Before:  Hon Lam VP and Yuen JA in Court

Date of Judgment:  5 March 2021

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J U D G M E N T

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

Introduction

1.On 7 August 2020, Deputy High Court Judge K W Lung (“the Judge”) refused 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 (“the Board”) dated 26 November 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 11 January 2018 rejecting the applicant’s non-refoulement claim.

2.On 20 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision.  She filed a Supplemental Notice of Appeal on 16 November 2020.

Background

3.The applicant is an Indonesian national.  She was employed as a foreign domestic helper in Hong Kong until her contract was terminated on 5 November 2012 and subsequently she was permitted to remain as a visitor until 21 November 2012. The applicant did not depart from Hong Kong and has overstayed since.  She surrendered to the Immigration Department on 29 July 2015 and was released on recognizance the same day.  The applicant lodged her non-refoulement claim on 25 January 2016.

4.The applicant is married to a Hong Kong permanent resident.  She and her husband have a daughter born in Hong Kong in 2016, who is also a Hong Kong permanent resident.  The applicant’s husband was imprisoned at the time of the Board’s decision.  He was due to be released in August 2019.

5.The applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed or even killed by a loan shark to whom her late father owed money.  The factual background was succinctly summarized at [5] of the Form CALL-1 ([2020] HKCFI 1884) and also at paragraphs 7 to 18 of the Board’s decision.

6.By a notice of decision dated 11 January 2018, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined against the applicant.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4]. 

7.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 17 September 2018 during which the applicant gave testimony and was interviewed by the Board.  The Board did not believe the applicant as there were significant inconsistencies in her evidence about the loan-shark which she was unable to explain satisfactorily.  As such, the Board did not accept that the applicant would face a real risk of harm from the loan shark if she were to return to Indonesia.

8.The Board accepted the applicant’s testimony as to her marriage to her husband and her concerns that she does not wish to be separated from her husband or their Hong Kong born daughter and that she does not want to take their daughter to Indonesia.  The Board also accepted that if the applicant were to return to Indonesia, with or without her daughter, she may face societal discrimination, and also there may be difficulties due to a lack of family support in Indonesia.  However, the Board was not satisfied that there would be a real risk of harm under any of the applicable grounds for a non-refoulement claim.

9.Thus the Board dismissed the applicant’s appeal on 26 November 2018 on all the applicable grounds.

Decision of the court below

10.On 17 December 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  She did not state any grounds for relief in either her Form 86 or affirmation in support.  Her affirmation only exhibited the Board’s decision and hearing bundle before the Board.

11.On 7 August 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12] – [15] of the Form CALL-1 ([2020] HKCFI 1884, HCAL 2881/2018) as follows:

“ 12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 10 above.

13.  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.”

14.  The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

Appeal to this Court

12.On 20 August 2020, the applicant filed her Notice of Appeal against the Judge’s decision, in which she stated that she wished to challenge that decision but did not state any grounds of appeal.

13.On the same day that she filed the Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

14.Pursuant to the Registrar of Civil Appeals’ directions of 4 November 2020, the applicant filed a Supplemental Notice of Appeal on 16 November 2020, in which she reiterated her problems with the loan-shark. 

15.Such assertions are not proper grounds of appeal since they do not pinpoint any error on the part of the judge in coming to his decision in rejecting the application for leave to apply for judicial review.

16.On 17 December 2020, this Court directed the applicant to lodge her written submissions by 14 January 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

17.The applicant failed to lodge any submissions as directed.  The hearing date was vacated and this appeal is processed on paper without oral hearing.

Legal principles

18.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of 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].  For the purpose of this appeal, the salient principles are as follows:

(1)  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 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

(3)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

19.In both her Notice of Appeal and Supplemental Notice of Appeal, the applicant did not advance any proper grounds of appeal.  She did not identify any specific error in either the Board’s decision or the Judge’s decision or any other specific potential grounds for reversing the Board and the Judge’s decisions. 

20.The Board rejected the applicant’s claim for non-refoulement protection based on its finding that there was no real risk of harm under any of the applicable grounds for non-refoulement.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

21.Having considered the materials before us, we are of the view that the applicant has not put forward any effective public law grounds.  The Judge has applied the relevant legal principles correctly.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

22.For these reasons, this appeal is dismissed.

The applicant acting in person