Giyarsih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 392/2022, [2023] HKCA 711

On appeal from [2022] HKCFI 2877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 392 OF 2022

(ON APPEAL FROM HCAL NO 1059 OF 2019)

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J U D G M E N T

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

1.This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 13 January 2023 ([2023] HKCA 37). The Court of Appeal rejected the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 20 September 2022 ([2022] HKCFI 2877) refusing to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged written submissions on 8 February 2023. Having considered the written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Indonesia. She entered Hong Kong on 1 June 2012 as a foreign domestic helper. On 8 August 2012, her employment contract was terminated prematurely after her criminal conviction. She was referred to the Immigration Department on 15 September 2012. On 26 October 2012, she raised a torture claim which was rejected by the Director of Immigration (“the Director”) on 27 May 2013 and the subsequent appeal was dismissed by the Board on 24 September 2013. She lodged a non-refoulement claim on 25 July 2013 on the basis that, if refouled, she would be harmed or killed by her creditor.

4.In the Notice of Motion filed on 31 January 2023, the applicant stated the following grounds:

(1)  The court failed to consider the fact or grounds she had submitted before the hearing that the Board and the Director failed to provide sufficient opportunity for establishing her claim, and has poor observation into country of original condition that the authority of her country would not be able to protect her from her enemies;

(2)  The judge did not properly consider why the applicant would not face any risk upon refoulement. Her life is still at risk from her enemies who will harm her and the threat is continuing against her.

5.In the written submissions, she further submitted that:

(1)  The Board and the Director failed to take into account and/or give proper weight to relevant considerations and materials and hence their decisions are illegal. In particular, the decision makers failed to give due regard to the fact that:

(a)  the judges’ support for the Board’s decision is improper as the Board did not follow high standard of fairness for providing opportunity for the applicant’s claim and did not inquire about the fear the applicant had raised in her claim as well as the country of origin conditions information;

(b)  her claim is based on true story. Decision maker did not observe her fear well. Even assuming her risk may be private and arose out of personal dispute, her life would be too risky if she returns to her country.

(2)  In the judgment of her appeal, the judges stated that there is no merit in her claim. Her claim is not a private and personal matter but the decision maker did not observe her fear properly.

(3)  In the judgment of her judicial review application and her appeal, the judges support the Board’s decision but they did not focus on her fear that her life would be in danger.

6.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

7.The Court of Appeal has already duly considered the applicant’s grounds of appeal and given detailed reasons for the dismissal of the appeal in the judgment dated 13 January 2023. In the present application, the applicant failed to show that the Court of Appeal was wrong in its decision. In particular, the Court of Appeal held that it is unnecessary for the Board to further consider the country of origin information when the Board had decided that the applicant failed to substantiate her claim of risk of harm upon refoulement. The applicant failed to adduce any evidence to refute the Board’s findings. She also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

8.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 31 January 2023.

The Applicant (Appellant), acting in person