Re Sulis Marlina

CACV 203/2023, [2023] HKCA 1249

on appeal from [2023] HKCFI 1632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 203 OF 2023

(ON APPEAL FROM HCAL 837/2019)

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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 June 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 18 March 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 April 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 2005, but she overstayed and was referred to the Immigration Department on 13 November 2015.  Thereafter, she lodged a non-refoulement claim on 24 November 2015.

3.The applicant’s claim was based on a fear of being harmed or killed by her father’s creditor, a loan shark, because she had refused to marry the loan shark in lieu of her father’s repayment of the debt. 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 4 April 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 29 November 2018, the Board dismissed the appeal on 18 March 2019 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that the applicant’s primary claims of risk of harm posed by the loan shark were based on inconsistent and incredible evidence.

The Judge’s decision

6.The applicant filed a Form 86 on 26 March 2019 seeking to judicially review the Board’s Decision.

7.In the applicant’s supporting affirmation, she stated that she was afraid to return to Indonesia because “the debt collector still waiting for me” and that she was worried that the loan shark may kill her.

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 [12] to [18] of the CALL-1 Form:

“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, §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, for the reasons given above, had rejected the applicant’s evidence on the facts of her case. The grounds in paragraph 11 above are not valid 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.

CONCLUSION

18.  I refuse to grant leave to 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 30 June 2023, the applicant put forward the following grounds, which may be broadly summarised as follows, namely that:

(1)  she would face “hardship” if she were refouled to Indonesia; and

(2)  the Board had relied on “source of news which [was] not officially recognised, or it [was] simply hearsay” and “some cases which are outdated [in] considering the dramatic changes”.

10.The applicant lodged written submissions on 28 August 2023, in which she referred to the well-established principles in, inter alia, ST v Director of Immigration (sic)[6] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 and The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374.

11.We heard the appeal on 25 October 2023.  The applicant appeared in person, and apart from repeating her wish to remain in Hong Kong for a longer period, she had nothing further to add to the documents 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.  Her written submission similarly 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.  Her repetition of fear of “hardship” if refouled does not advance her case on appeal.  As to her contention that the Board took into account irrelevant consideration (namely so-called outdated “cases” and an unofficial “source of news”), the applicant had wholly failed to particularise which “cases” or “source of news” the Board was said to have taken into account, how such information was said to be “outdated” or unofficial, and further still, how the Board’s apparent consideration of such information had unfairly or improperly, procedurally or in substance, impacted upon the determination of her claim.  In any event, these vague complaints are directed against the Board, and not the Judge’s decision.

15.Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in her written submissions had not been applied in the consideration of her appeal by this court or in the processing of her non-refoulement claim.

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

The applicant acting in person