Endah Sri Handayani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 271/2023, [2024] HKCA 71

On Appeal From [2023] HKCFI 1879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 271 OF 2023

(ON APPEAL FROM HCAL NO. 988 OF 2019)

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BETWEEN

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J U D G M E N T

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Hon Anthony Chan J (giving the Judgment of the Court)  :

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 27 July 2023[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 9 April 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 24 September 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is an Indonesian national born in 1978.  She first came to Hong Kong to work as a domestic helper in February 2011.  The applicant last arrived in Hong Kong on 8 January 2015 and was permitted to stay as a visitor until 7 February 2015.  She overstayed and surrendered to the Immigration Department on 20 November 2015.  The applicant submitted her written significations dated 26 April 2016 and 24 May 2016 respectively and her Non-refoulement Claim Form dated 28 August 2018 to the Immigration Department.  The applicant’s claim was made on the basis that if she returned to Indonesia, her husband and her father would harm or kill her due to monetary dispute and adultery.  The factual background of the applicant’s claim was set out at [8] to [16] of the Board’s decision.

3.By notice of decision dated 24 September 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 18 February 2019, during which the applicant gave evidence and answered questions from the Board.  The applicant claimed that she had an affair with a married man in Hong Kong and subsequently had an unplanned pregnancy.  She further claimed that he wanted termination of her pregnancy, but she insisted to keep the baby, so he urged her to return to Indonesia in fear that his wife or others would discover their affair.  In favour of the applicant’s credibility, the Board accepted that the applicant had a difficult time due to the attitude of her youngest child’s father in relation to the pregnancy and the birth of the child.  The Board also accepted that the applicant might have had difficulty in recalling details of events supporting her claim, due to her alleged depression and attempted suicide in 2017.  However, the Board did not accept her claims of fear of serious violence upon re-foulement as credible, due to her inconsistent evidence regarding threats and treatment by her husband and family.

5.The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Indonesia.  It was not satisfied that the applicant’s husband had treated her violently or that he or her family had threatened to kill her if she returned to Indonesia.  In light of the available COI, the Board found that the discriminatory treatment of unmarried mothers and their children in Indonesia did not amount to serious harm of the kind covered by non-refoulement grounds, and there was no real basis in the applicant’s claim that her family had the ability to locate and harm her should she return to Indonesia.  Further, the Board found that the applicant failed to advance any basis for her claim of fear that her husband, father and son would locate and kill her wherever she went in Indonesia. 

6.In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Indonesia.  By its written decision dated 9 April 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.On 11 April 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  Aside from extensively citing the law and legal principles without specific application to her case, her grounds of appeal included the applicant’s inability to find any safe place to stay in Indonesia, criticisms of the decisions of the Director and the Board, that the Director and the Board should visit Indonesia to understand the real situation there, and that the applicant would have been killed if she did not run away from her country.  In the accompanying affirmation, the applicant repeated criticisms of the Director and the Board and annexed the Board’s decision.  

8.The Judge considered the application on the basis of the documents alone as the applicant was absent at the oral hearing fixed on 16 January 2023.  On 27 July 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [18] of the Form CALL-1 as follows:

“13. 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).

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

15. 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.’

16. The Board, for the reasons above, rejected her evidence on the facts of her case.  The reasons stated in paragraph 12, supra are only her opinions without any evidence in support.  It is unnecessary for the Director to visit her country to understand the situation there as the Director was entitled to rely on the COI.  Those grounds are not valid to challenge the Board’s Decision.

17. 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.

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

Appeal to this Court

9.On 30 August 2023, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were that she disagreed with the decisions of the Director and the Board and that her case was not determined fairly.  

10.The applicant did not lodge any written submissions.

11.As such, we shall accordingly determine the appeal on the basis of the available documents and materials. 

Discussion

12.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.In the present case, the Board did not accept the applicant’s evidence as credible in relation to claims of violence and threats against her by her husband and her family.  Therefore, it found that there was no real risk of harm upon refoulement as alleged on any of the grounds for non-refoulement.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.

14.Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.The applicant’s appeal is accordingly dismissed.  This accords with the applicant’s Request for Dismissal of Appeal filed on 25 January 2024 after the Notice of Handing Down of this Judgment was issued on 17 January 2024.

The Applicant, unrepresented, acting in person