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

CACV 552/2024, [2025] HKCA 396

On Appeal from [2024] HKCFI 3341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 552 OF 2024

(ON APPEAL FROM HCAL NO 2215 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 17 December 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 26 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 March 2017.

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 14 October 2013. She had overstayed since 29 October 2013. On 11 December 2015, the Applicant lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her elder brother (Sumarlin), who was an Islamic follower, because she gave birth to a child out of wedlock in May 2014, and subsequently married the child’s father, who was not a Muslim, in 2015. Details of the Applicant’s claim have been summarised by the Judge at §§4-6 of his Judgment dated 17 December 2024.

3.By a Notice of Decision dated 28 March 2017 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s Decision to the Board. On 26 April 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §11 of the Judgment, as follows:

“The Board found significant issues relating to the [Applicant’s] credibility because she claimed during the hearing that she had been assaulted by her elder brother, which was never mentioned in her previous evidence [17]. Given the issue on her credibility, the Board rejected the [Applicant’s] claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [21]-[34], [37]-[40].”

THE JUDGMENT

5.On 2 August 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 or her supporting affirmation of the same date.

6.On 17 December 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] As mentioned in paragraph 2, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the [Applicant’s] case.

[16] 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…

[17] 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 that she has a child who is 16 years of age. The father has passed away.

…

[19] For the reasons given, the Board rejected her evidence in support of her claim. This is a matter of the credibility of her evidence, which is squarely within the province of the Board. The [Applicant] has raised no valid reason to challenge the Board’s Decision.

[20] I find that the [Applicant] has failed to show that there is realistic prospect in her intended application.”

THIS APPEAL

7.In her Notice of Appeal filed on 19 December 2024, the Applicant put forward the following ground(s) of appeal: “[t]he High Court did not consider my [judicial review]. Adjudicator did not give me correct decision. His decision is full of wrong. Please grant my leave.” [sic]

8.The Applicant has failed to lodge written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 17 March 2025. 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

9.Under Order 53, Rule 4 of the Rules of High Court, Cap 4A, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

10.There was a delay of 7 days by the Applicant in seeking leave to apply for judicial review in the present case. She has not offered any explanation for the delay. In any event, this Court will go on to consider the merits of the appeal.

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 a non-refoulement case, 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’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, 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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.The Applicant has failed to identify or show any error in the Judgment refusing to extend time for her to apply for leave to apply for judicial review, or grant leave to apply for judicial review.

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

The Applicant, acting in person