Re Mulyantini Sri

CACV 234/2021

[2021] HKCA 1563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 234 OF 2021

(ON APPEAL FROM HCAL NO 1987 OF 2018)

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Before: Hon Chu and G Lam JJA in Court

Date of Written Submissions: 6 July 2021

Date of Judgment: 28 October 2021

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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.On 4 May 2021, Deputy High Court Judge To (“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 (“Board”) dated 14 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 21 March 2017 rejecting the applicant’s non-refoulement claim.

2.On 11 May 2021, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.The applicant is an Indonesian national. She last arrived in Hong Kong on 29 July 2012 and was employed as a domestic helper until her contract was prematurely terminated on 15 April 2013. She did not depart Hong Kong and overstayed. The applicant lodged a non-refoulement claim on 4 June 2015.

4.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 from whom her mother and uncle had borrowed money, due to their failure to repay the loan. The factual background of her claim was summarized at [4] to [9] of the Board’s decision.

5.By notice of decision dated 21 March 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her. The applicable grounds are BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]

6.The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 13 April 2018, during which the applicant gave oral testimony and answered questions from the Board. Based on the applicant’s evidence, the Board found that as she had only received two threatening telephone calls demanding repayment of the loan and not suffered any physical injury, there was no real risk of harm in the event of refoulement. The applicant’s credibility was not in issue. The Board also found that in any event reasonable state protection was available and internal relocation was viable. Therefore, on 14 September 2018 the Board dismissed the applicant’s appeal with regard to all the applicable grounds.

Decision of the court below

7.On 19 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her supporting affirmation, the applicant deposed that she was afraid to go back to Indonesia, due to the loan shark still hounding her for the money. She did not set out any specific ground for judicial review.

8.Following a hearing on 28 April 2021 at which the applicant appeared before the Judge, on 4 May 2021 the Judge refused to grant leave for judicial review. The reasons for the refusal were set out at [11]-[13] of the Form CALL-1 ([2021] HKCFI 1246, HCAL 1987/2018) as follows:

“ 11. The Board reminded itself that the burden of proof of fear and risk was on the Applicant and reminded itself of the relatively low standard of proof required. It referred to the relevant authorities. In respect of the primary facts, the Board basically accepted the Applicant’s evidence in toto. The Applicant could have no complaint about that. It was only on the basis of her evidence that the Board made the further finding that the risk of harm was not real. This was a reasonable inference to draw on the primary facts. This finding could not be criticized as unreasonable or irrational.

12. The Applicant disagreed with the Board’s finding about adequacy of state protection and viability of internal relocation. She said that the police are corrupt and would demand a bribe for processing her complaint and that the loan shark had underlings who can locate her anywhere in Indonesia. The Board had considered the positive and negative COI in relation to these matters and found as a fact that state protection is available and internal relocation viable. At the oral hearing, the Applicant also confirmed that internal relocation is viable. The Board had taken care and asked the question twice to make sure that there was no misunderstanding. This finding of the Board is unreproachable.

13. As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board. The function of the court in judicial review is not to re-assess the non-refoulement claim afresh. The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s’ claim for non-refoulement protection under any of the four applicable grounds. The Decision was utterly without fault.”

Appeal to this Court

9.On 11 May 2021, the applicant filed her Notice of Appeal in this Court, in which she stated that she was still afraid of the loan shark who was still looking for her. Again she did not set pit any specific ground of appeal against the Judge’s decision.

10.On the same day that she filed the Notice of Appeal, the applicant consented in writing for the appeal to be disposed of on paper without an oral hearing.

11.The applicant lodged written submissions for her appeal on 6 July 2021. Those submissions however consist almost entirely of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case. Paragraph (4) of her submissions states that the Board acted in a procedurally unfair manner by failing to properly assess her credibility, but the applicant did not provide any details or particulars as to how the Board failed to properly assess her credibility, or any particulars in support of her other arguments.

Legal principles

12.In assessing the merit 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.

Discussion

13.As mentioned earlier, the applicant did not in her Notice of Appeal or her written submissions provide any particulars in support of her arguments. Nor did she identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing his decision. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20.

14.As we will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are no grounds advanced that point to any error by the Judge, the appeal should be dismissed.

15.In the present case, the Board rejected the applicant’s claim for non-refoulement protection, based on its finding that as the applicant had only received two threatening telephone calls demanding repayment of the loan and had not suffered any physical injury, there was no real risk of harm in the event of refoulement. Reasonable state protection was available and internal relocation was viable. These findings were open to the Board on the evidence, and the court will not interfere with such assessments unless they are vitiated on public law grounds.

16.As the applicant’s credibility was not in issue, her argument that the Board failed to properly assess her credibility is misconceived.

17.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

18.For these reasons, the appeal is dismissed.

The Applicant, unrepresented, acting in person