Aris Susanti Tumijan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 420/2024, [2025] HKCA 82

On Appeal From [2024] HKCFI 2471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 420 OF 2024

(ON APPEAL FROM HCAL NO 1884 OF 2019)

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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.This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 4 October 2024 (“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 28 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 3 January 2019.

BACKGROUND

2.The Applicant is a national of Indonesia. She first arrived in Hong Kong to work as a foreign domestic helper. Her last employment contract was prematurely terminated on 29 January 2009, and she had overstayed since 13 February 2009. On 6 June 2009, she was arrested by the police for overstaying. On 21 August 2009, she raised a torture claim[1], which was later rejected by the Director on 3 November 2011.

3.The Applicant was released on recognizance on 27 August 2009. She failed to comply with the reporting conditions under her recognizance and had absconded since 16 December 2011. On 13 December 2017, she was re-arrested by the police. On 21 December 2017, she lodged a non-refoulement claim, which was assessed on all applicable grounds other than the risk of torture. The Applicant claimed that, if refouled, she would be harmed or killed by her uncle (Mr Sugianto) who had moved into her parents’ house since the passing away of her parents, and taken over it as his own, giving rise to a property dispute with the Applicant. Details of the Applicant’s claim have been summarised by the Judge at §§4-13 of his decision dated 4 October 2024.

4.By a Notice of Decision dated 3 January 2019 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

5.The Applicant appealed the Director’s Decision to the Board. On 28 June 2019, 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 §§17 and 18 of his decision, as follows:

“[17] The Board found the [Applicant’s] account wholly unreliable [19]. All her evidence were hearsay because throughout 2004 and 2009, she was not in Indonesia. There was nothing to support her claim that all her family members died out of the black magic cast on them [20]. Furthermore, the [Applicant’s] behavior of jumping recognizance was also inconsistent with that of someone who genuinely wanted non-refoulement protection [22]-[28].

[18] In any event, state protection would be available to the [Applicant] according to the country of origin information [31]-[33] and that internal relocation would also be viable [45]-[48]. Based on such findings, the Board concluded that the [Applicant’s] case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [8]-[15], [34]-[44].”

THE JUDGE’S DECISION

6.On 5 July 2019, 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. In her supporting affirmation, she said that she would like to “reject and appeal” the Board’s Decision as it had disregarded her dangerous situation.

7.On 4 October 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[22] 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…

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

…

[25] For the reasons given by the Board above, the Board did not accept her factual evidence in support of her claim.

[26] The [Applicant] has raised no valid ground to challenge the Board’s Decision.

[27] The [Applicant] therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

THIS APPEAL

8.In her Notice of Appeal filed on 8 October 2024, the Applicant merely stated that she disagreed with the decision and wanted to appeal.

9.The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 4 December 2024. Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

10.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 or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

11.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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

13.The Applicant’s appeal against the Order has no merit, and is dismissed.

The Applicant, acting in person