Septi Aditiyaning Rahayu v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

CACV 186/2022

[2022] HKCA 1238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 186 OF 2022

(ON APPEAL FROM HCAL NO 910 OF 2019)

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Before:  Hon Chow JA and Ng J in Court

Date of Hearing:  16 August 2022

Date of Judgment:  20 September 2022

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.On 10 May 2022, the Applicant, who is acting in person, filed a notice of appeal against the decision made by Deputy High Court Judge K W Lung (“the Judge”) on 4 May 2022 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 1 March 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 June 2018.

Background

2.The Applicant is a national of Indonesia. The Applicant entered Hong Kong on 23 October 2014 to work as a foreign domestic helper. However, her employment contract was terminated prematurely on 17 August 2015 and she was required to leave on or before 31 August 2015. She instead overstayed since 1 September 2015. On 17 November 2015, she surrendered herself to the Immigration Department. On 25 January 2016 and 28 November 2017 respectively, she lodged a non-refoulement claim, claiming that, if refouled, she would be harmed or killed by her husband. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3.By a Notice of Decision dated 29 June 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s decision. On 1 March 2019, the Applicant’s appeal was dismissed by the Board, and the Board confirmed the Director’s decision (“the Board’s Decision”).

5.Having considered all the Applicant’s evidence, the Board accepted her fear of harm from her husband but noted that she had ceased contact with her family, including her child, for two years and did not wish to reconnect with them. It considered the Applicant’s assertion that her husband could locate her anywhere in Indonesia to be baseless. As a result, the Board concluded that the Applicant failed to establish her claim and thus dismissed her appeal (see §9 of the CALL-1 Form).

The Judge’s decision

6.On 3 April 2019, the Applicant filed her Form 86 against the Board’s Decision.

7.On 4 May 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“12. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14. 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.’

15. The Board has given its reasons for its Decision. There is no valid reason from the applicant to challenge the Board’s Decision.

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

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

8.Accordingly, the Judge refused to grant leave to apply for judicial review and dismissed her application.

This Appeal

9.In her Notice of Appeal dated 10 May 2022, the Applicant stated her grounds of appeal as follows:

“I am disagree with the decision made by the Director of Immigration. As well as the Adjudicator of TORTURE claim Appeal board. I do not think my [case] have been determined fairly. So I want Review my case in COURT of Appeal.”

10.In her 3-page skeleton argument dated 13 July 2012, the Applicant’s complaint can be summarised as disagreeing with the decisions of the Director and the Board, and there was procedural unfairness since she had not been provided with language assistance. For similar reasons, the Applicant also complained of Wednesbury unreasonableness. However, save for the allegation that the “Determination” was not translated or read back to her so she could not have understood the “Determination” to the fullest, no particulars were given as to what sort of language assistance she had requested and which she was deprived of.

11.We note that the Applicant’s said complaint of procedural unfairness/ Wednesbury unreasonableness was not stated as a ground in her Form 86, her affirmation in support or the Notice of Appeal. We also note that all court documents including the Form 86, the supporting affirmation, the Notice of Appeal and the skeleton argument were written in English. This indicates either that the Applicant is sufficiently familiar with the English language, or that she has access to, or is able to seek, such language assistance as she may require. Lastly, we note that the leave application before the Judge was on consideration of documents only; otherwise, the Applicant would have been provided with whatever appropriate interpretation assistance she required at a hearing before the Judge. There is thus no basis for us to accept that the alleged lack of language assistance has or would have jeopardized the rights of the Applicant in this case.

12.At the hearing of this Appeal, the Applicant had nothing to add.

Discussion

13.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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

14.Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022.

15.We do not see any procedural unfairness or Wednesbury unreasonableness in this case as alleged. Rather, the Applicant has failed to raise any viable grounds of appeal against the Judge’s decision dated 4 May 2022. Accordingly, the Applicant’s appeal has no merits, and is hereby dismissed with no order as to costs.

The Applicant, acting in person