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

CACV 237/2024, [2024] HKCA 903

On Appeal From [2024] HKCFI 1388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 237 OF 2024

(ON APPEAL FROM HCAL NO. 1681 OF 2019)

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BETWEEN

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1.This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 6 June 2024 ([2024] HKCFI 1388)  (“the Leave Decision”)  refusing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 4 June 2019 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 19 March 2018 (“the Director’s Decision”)  refusing her non-refoulement claim.

2.We heard the appeal on 25 September 2024.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now. 

BACKGROUND

3.The applicant is a national of Indonesia.  She last arrived in Hong Kong on 15 July 2011 to work as a foreign domestic helper.  Her contract was prematurely terminated on 30 November 2011 and she overstayed since 15 December 2011.  The applicant was arrested for breach of conditions of stay on 13 September 2016 and was subsequently sentenced to imprisonment for 4 months.  By way of written representations dated 12, 19 and 23 December 2016, the applicant made a non-refoulement claim on the basis that, if refouled, she would be harmed or even killed by her family and the villagers because she married a man of different ethnic and religion.  Details of the applicant’s claim were summarised by the Judge at [4] – [11] of the Leave Decision.

4.By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR 2 risk[2], BOR3 risk[3], and persecution risk[4].

5.The applicant appealed the Director’s Decision to the Board.  The applicant attended an oral hearing before the Board on 21 January 2019.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [12] – [15] of the Leave Decision:

“12. The applicant appealed the Director’s Decision to the Board. On 21 January 2019, the Board conducted an oral hearing.

13. The Board found several key aspects of the applicant’s claim vague and implausible [38]. It did not accept her claimed relationship and marriage to her boyfriend [39] - [46]. It also noted significant inconsistencies in the applicant’s claim concerning her family’s knowledge about her relationship with her boyfriend [47] - [48]. In any event, the country of origin information showed that “honour killings” very rarely occurred in Indonesia [49] and that the applicant’s significant delay in making a non-refoulement claim also gave rise to concerns about the genuineness of her fears [50].

14. Regarding the loan from the creditor, the Board accepted the applicant’s evidence that her father may have borrowed money from the creditor in 2000 and that she worked as a domestic helper for the creditor in order to pay off some of the debt [52]. However, due to the discrepancies in the applicant’s evidence, they rejected her claim about (i)  the burning down of her father’s house; (ii)  harm caused by the creditor on her family; (iii)  receiving threatening phone calls from the creditor and (iv)  the arrangement that she had to marry the creditor’s son if her father failed to repay the loan [53] - [57]. The Board found that even though the applicant may have been slapped while working as a domestic helper with the creditor, the risk of such mistreatment to reoccur was considered remote given the elapse of time and the lack of evidence indicating that the applicant would return to work for the creditor [58].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [9] - [14], [60], BOR 2 and BOR 3 risk [15] - [19], [61] - [62] or Persecution risk [20] - [25], [63].  It therefore dismissed the applicant’s appeal and confirmed the Director’s decision.”

THE JUDGE’S DECISION

6.On 18 June 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  In her Form 86 and supporting affirmation, she complained that the Board’s Decision was unreasonable as the Board failed to consider all the matters raised in her claim and/or give adequate reason.

7.On 17 April 2024, the applicant attended an oral hearing before the Judge and an Indonesian interpreter was present to provide language assistance.  On 6 June 2024, the Judge refused to grant leave to apply for judicial review and gave his reasons at [18] – [24] of the Leave Decision:

“18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

19.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said she agreed that there are discrepancies in her evidence, however, she still has no money to pay off the debt.

20.  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.’

21.  Having considered the applicant’s evidence, the Board came to its conclusion:

‘38. The Board has carefully considered the Appellant’s claims including the written and oral evidence provided to the Department and her oral evidence given at the hearing before the Board. As set out below, the Board found several key aspects of the Appellant’s claims inconsistent, vague and implausible. For these reasons, the Board has serious doubts about the reliability and credibility of the Appellant’s evidence.’

22.  The grounds the applicant raised in paragraph 17, supra, are not valid to challenge the Board’s findings.  There is no reason for the Court to interfere with the Board’s finding of the facts.

23.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

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

THIS APPEAL

8.In her Notice of Appeal filed on 12 June 2024, the applicant stated:

“1. Failure to considers my fact that why I would not return back to my country because of fear that my life will be at danger upon refoulement.

2. failure to proper considers my claim properly under BOR 2 and BOR 3 risk.” (sic)

9.Pursuant to the directions of the Registrar of Civil Appeals dated 12 June 2024, the applicant lodged her written submissions on 13 August 2024.  In those submissions, she complained that the Judge failed to adhere to high standards of fairness in supporting the Board’s Decision as her enemies still posed threats to her upon refoulement.  She further complained that the Board failed to “observe her fear” properly.

10.We heard the appeal on 25 September 2024.  An Indonesian interpreter was present to provide language assistance.  At the hearing, the applicant confirmed she had nothing to add to her written submissions.

DISCUSSION

11.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 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

12.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 errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

13.In our view, the applicant’s allegations have no substance.  Her complaints were mainly directed at the Board’s Decision and were in any event all general and vague assertions without specific particulars or evidence in support.  More importantly, she failed to point out with specific particulars how the Judge had erred in his decision.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Her allegations therefore did not constitute proper grounds of appeal and must fail. 

14.In any event, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the decision.  The Judge considered the allegations raised by the applicant and gave detailed reasons for his decision.  We see no basis to disturb the Leave Decision.

15.The applicant’s appeal against the Leave Decision has no merit and is dismissed.

The Applicant, unrepresented, acting in person