Re Wiwik Idawati

CACV 283/2021

[2021] HKCA 1621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 283 OF 2021

(ON APPEAL FROM HCAL NO 1625 OF 2019)

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Before:  Hon Au and G Lam JJA in Court

Date of Written Submissions:  2 August 2021

Date of Judgment:  11 November 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.This is an appeal against the decision of Deputy High Court Judge P Li (“Judge”) on 20 May 2021[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 31 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 19 April 2018 rejecting the applicant’s non‑refoulement claim.

Background

2.The applicant is an Indonesian national.  She last arrived in Hong Kong on 20 January 2016 and was employed as a domestic helper until her contract was prematurely terminated on 25 February 2016.  She did not depart Hong Kong, and overstayed.  She surrendered herself to the Immigration Department on 21 March 2016, and lodged a non‑refoulement claim on 25 August 2016. 

3.The applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed or even killed by her abusive husband, by her stepfather who attempted to force her to marry a wealthy older man, and also by a loan shark that her husband had borrowed money from and had not repaid.  The factual background of her claim was summarized at [2]‑[15] of the Form CALL‑1.

4.By notice of decision dated 19 April 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

5.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 2 April 2019, during which the applicant gave oral testimony and answered questions from the Board.  The Board accepted that the applicant had been married twice and that she had suffered domestic violence in her second marriage.  However since her second husband had re‑partnered and started a new family, the Board did not accept that he presented a risk to the applicant in the future.  The Board found that there was no risk of future harm from the applicant’s stepfather who had for the past 7 years continued to raise her youngest son with her mother and also given that the applicant had commenced a relationship with a man in Hong Kong.  As regards the loan shark, given that 14 years had elapsed since the initial loan and neither the applicant nor her family or child had been harmed, the Board did not find the applicant’s claims to fear harm to be credible. 

6.Although the Board had some doubts as to the credibility of her claims, the Board found that even if the applicant were given the benefit of the doubt, because internal relocation was viable, there was no risk of harm from her husband, as well as her stepfather and the loan shark.  As a result the Board did not make a finding that the applicant would be at risk if she were to return to Indonesia.  Accordingly, the Board dismissed the applicant’s appeal with reference to all the applicable grounds in its decision dated 31 May 2019.

Decision of the court below

7.On 14 June 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In her Form 86, she raised a number of grounds for judicial review, summarized by the Judge at [21] of the Form CALL‑1.

8.Following a hearing on 9 February 2021 at which the applicant appeared before the Judge, on 20 May 2021 the Judge gave his decision refusing to grant leave for judicial review.  The reasons for the refusal were set out at [21]‑[27] of the Form CALL‑1 as follows:

“ 21. The applicant filed the leave application on 14/6/2019. She put forward the following grounds in the Form 86:

a. The Director and the TCAB failed to consider extra‑judicial killing if the applicant returned to her country. There was insufficient time to arrange evidence for the claim and the appeal.

b. The Director failed to consider state acquiescence as the applicant was tortured by the law enforcement agencies of the State and those high up in the political circles.

c. The Director failed to consider COI which showed human rights abuses in her country.

22. The applicant attended a hearing before this court on 9/2/2021. She reiterated that she has been in Hong Kong for 13 years. She just did not want to return to Indonesia. Rahman has married another woman, however, he still contacted her.

23. In this leave application, this court would concentrate on the decision of the TCAB.

24. The grounds raised in her Form 86 are perplexing. Extra‑judicial killing was never an issue in the factual basis of her claim. There was no torture by the law enforcement agencies of the State. The risk of harm as asserted by the applicant was from Rahman, ‘J’ and the loan shark. These were all private matters with no State involvement. These are the findings of the TCAB. I have the impression that she adopted the grounds of someone without checking its content. There is no substance in this ground.

25. The applicant complained that she had insufficient time to prepare. This was never raised with the Adjudicator. It was not raised with this court too. She had not specified what evidence she needed time to locate. In reality, the applicant first came to Hong Kong in 2010. She filed the non‑refoulement claim in August 2016. The TCAB hearing was in April 2019. I do not accept this ground. She has plenty of time to prepare.

26. As to the COI, the Director had extensively considered relevant COI in relation to corruption and human rights issues. In addition, the adjudicator had considered relevant information on domestic violence and marriage law in Indonesia. I do not accept the criticism of the applicant.

27. In my view, there is no error of law and procedure.  Given the evidence submitted by the applicant, I find the decision of the TCAB reasonable.”

Appeal to this Court

9.On 31 May 2021, the applicant filed her Notice of Appeal against the Judge’s decision.  By way of grounds of appeal, she stated that the decision departed from the facts and reality related to her case, and that there was no transparency in the decision.  Other than that, she did not provide any particulars of her grounds of appeal.

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

11.The applicant lodged her written submissions for the appeal on 2 August 2021.  In those written submissions, she submitted that her life would still be in danger if she were to return to her country, that matters related to her case were ignored, and that conditions in her country were much different from what was thought.

12.The applicant further submitted that she could not protect herself from her enemies and neither could the police, due to her enemies’ power and strong political support, and that death and torture in custody were common in her country, along with corruption and impunity.

13.Apart from these general pleas, the applicant did not in those submissions provide any details or particulars in support of her appeal.

Legal principles

14.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.

Discussion

15.As mentioned earlier, the applicant did not in her Notice of Appeal or written submissions provide any particulars in support of her arguments; she also did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars are not effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20.

16.As the Court of Appeal 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 such grounds that point to any error by the Judge, the appeal should be dismissed.

17.In the present case, the Board rejected the applicant’s claim for non‑refoulement protection, based on its reservations about her credibility resulting in its inability to find that she would face any real risk of harm from her ex‑husband, stepfather or creditors in the event of refoulement and that in any event internal relocation was viable.   These findings are open to the Board on the evidence before it.  The court will not interfere with such assessments unless they are shown to have been vitiated on public law grounds. 

18.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.

19.For these reasons, this appeal is dismissed.

The Applicant, unrepresented, acting in person