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

CACV 260/2023, [2023] HKCA 1101

On Appeal From [2023] HKCFI 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 260 OF 2023

(ON APPEAL FROM HCAL NO 467 OF 2023)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 17 August 2023, the Applicant filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 10 August 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 24 February 2023, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 November 2022 rejecting her non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Indonesia. She entered Hong Kong as a foreign domestic helper and her last employment visa permitted her to stay in Hong Kong until 19 April 2022 or two weeks after the termination of her employment contract, whichever was the earlier. On 8 February 2022, her employment contract was prematurely terminated. She did not depart after the expiry of her limit of stay, and overstayed in Hong Kong as from 23 February 2022. She was arrested by the police on 19 May 2022, and lodged a non-refoulement claim on 3 September 2022, claiming a risk of harm from her creditor due to an outstanding debt. Details of the Applicant’s claim were summarised by the Judge at §§4-5 of the CALL-1 Form.

3.By a Notice of Decision dated 17 November 2022, 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] (“the Director’s Decision”).

4.The Applicant appealed the Director’s decision to the Board. On 24 February 2023, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§9-10 of the CALL-1 Form, as follows:

“[9] At the outset, the Board found that the applicant’s evidence was inherently consistent as to the existence of a loan dispute with the creditor [44]. It proceeded to assess her claim under the individual grounds. Firstly, the Board found that the loan dispute was a private matter [46] and the country of origin information showed that state protection would be available to her [47]-[64]. Secondly, the creditor never materialized any death threats against the applicant or her family members. The creditor simply made phone calls to demand repayments [66]. Thirdly, there was no report on the applicant’s mental or physical injuries nor were any injuries inflicted on the applicant’s family members [74]-[76]. Fourthly, there was no evidence that the applicant was adversely targeted by the Indonesian government [84].

[10] In these premises, the Board rejected the applicant’s claim and dismissed her appeal.”

THE JUDGE’S DECISION

5.On 7 March 2023, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86 or in her supporting affirmation filed on the same date.

6.On 10 August 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[16] The Board had, for the reasons given in paragraph 9, supra, rejected her claim that she has real risk of harm or being killed upon her return to Indonesia. It therefore dismissed her appeal.

[17] There is no valid ground from the applicant to challenge the Board’s Decision.

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

THIS APPEAL

7.In her Notice of Appeal dated 17 August 2023, the Applicant states as follows: “I do not agree and not satisfied… I want to challenge the Judgement of the High Court. I wish the Court of Appeal will grant my leave.”

8.In her written submissions dated 31 August 2023, the Applicant says that she is a “very shy and withdrawn person”, and omitted to give certain details of “decisive importance” about her non-refoulement claim when she was interviewed. The Applicant says that if she is summoned to give a “more verbose account”, some further facts as sets out in §3.1(1) to (13) of her written submissions will emerge. The Applicant also disagrees with various findings made by the Board including (i) availability of state protection, (ii) risk of attack by the creditor, and (iii) involvement of the police in Indonesia.

DISCUSSION

9.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

10.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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.Insofar as the Applicant seeks to complain that she was not asked to give evidence in support of the application for leave to apply for judicial review, we note that the Applicant did not request for an oral hearing of the application in her Form 86. Having regard to the apparent lack of merits of the application, the Judge was entitled, in the exercise of his discretion, to deal with the application on paper. There is no proper basis for the Applicant to seek to adduce further evidence in the present appeal.

12.The Applicant has failed to identify or show any error in the Judge’s decision of 10 August 2023, and has failed to raise any viable ground of appeal against the Order.

13.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person