Re Suratemi

CACV 168/2023, [2023] HKCA 1250

on appeal from [2023] HKCFI 1306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 168 OF 2023

(ON APPEAL FROM HCAL 968/2019)

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J U D G M E N T

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

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 23 May 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 4 April 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 January 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Indonesia.  She has worked in Hong Kong as a foreign domestic helper since 2003, but she overstayed and she surrendered to the Immigration Department on 2 November 2015.  Thereafter, she lodged a non-refoulement claim on 24 January 2017.

3.The applicant’s claim was based on a fear of being harmed or killed by her husband.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision dated 15 January 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.The applicant appealed to the Board.  After a hearing on 28 December 2018, the Board dismissed the appeal on 4 April 2019 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  While accepting some aspects of her claim (such as the two incidents of domestic abuse experienced by her at the hands of her husband), the Board found that there was no evidence suggesting that the applicant would be faced with similar antagonism by her husband nor that he remained interested in her.  In any event, state protection was available to her.

The Judge’s decision

6.The applicant filed a Form 86 on 10 April 2019 seeking to judicially review the Board’s Decision, without setting out any grounds of review.

7.In the applicant’s supporting affirmation, she stated that she was not satisfied with the Board’s Decision and that she could not return to Indonesia.

8.After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [20] of the CALL-1 Form:

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

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

16.  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.’

17.  The Board found that she would not have the alleged risks if she returns to Indonesia. The grounds raised in paragraph 13, supra are only her personal opinions and they are not valid to challenge the Board’s Decision.

18.  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.

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

CONCLUSION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Grounds for appeal

9.In the Notice of Appeal dated 2 June 2023, the applicant contended that the “decisions are unlawful”, that the “decisions” failed to take into account “many things and [issues]”, and that her life would be in danger if she returned to Indonesia.

10.The applicant lodged written submissions on 29 August 2023, in which she repeated the dangers she would face if she were refouled, and contended, in gist, that the Director had made numerous errors in reaching his Decision and that she was not given an opportunity to “arrange relevant evidence” for the hearing before the Board.

11.We heard the appeal on 25 October 2023.  The applicant was absent, and we shall therefore determine the appeal on paper with reference to the documents already lodged with the court.

Discussion

12.The applicant has in her Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.  Similarly, her written submission fails to identify any error on the Judge’s part.

13.Moreover, as this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

14.As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

15.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person