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

CACV 548/2024, [2025] HKCA 499

On Appeal From [2024] HKCFI 3544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 548 OF 2024

(ON APPEAL FROM HCAL NO 2278 OF 2019)

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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 Levy (“the Judge”) dated 11 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 8 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 March 2018.

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 20 July 2016. She has been overstaying since 4 August 2016. On 6 July 2017, she was arrested by the police. She lodged a non-refoulement claim in July 2017 on the basis that, if refouled, she would be harmed or killed by the debt collectors of her ex-husband and her father for being unable to repay their debts. Details of the Applicant’s claims were summarised by the Judge at §5 of CALL-1 Form.

3.By a Notice of Decision dated 26 March 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.The Applicant appealed the Director’s Decision to the Board. On 8 May 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 §7 of the CALL-1 Form as follows:

“On 9 April 2019, the [Applicant] attended a hearing before the Board. At the hearing, the [Applicant] had the assistance of an Indonesian interpreter and adopted the information in her written submissions and the materials placed before the Director. She told the Board that she had nothing to add and no further documents to produce. The [Applicant] gave clarifications on matters contained in some of the documents and answered questions raised by the Board. The Board found that the [Applicant’s] evidence was unreliable, and that her claims concerning the loans made by her husband and her father from loan sharks as well as the threats and assaults the made had been a fabrication. The Board therefore dismissed her appeal against the Director’s Decision.”

THE JUDGE’S DECISION

5.On 8 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 in her supporting affirmation of the same date.

6.On 11 December 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[9] … At the hearing, this court had asked her whether she had any grounds she wished to submit in support of the Leave Application. The Applicant confirmed that she had nothing to say, and that she only wanted to remain in Hong Kong. Since the [Applicant] was acting in person, this court repeatedly asked her what mistake or error she believed the Board had made. She said there was not any. It is plain that the [Applicant] had failed to provide any evidence or put forward any grounds to challenge the Board’s Decision.

[10] The Board’s Decision was arrived at with the benefit of a hearing in which the [Applicant] was able to clarify matters raised by the Board. After examining the [Applicant’s] evidence, the Board found that there were material inconsistencies in the core elements of her claims. The Board found that she was an untruthful witness. As a result of the Board’s adverse findings of the [Applicant’s] credibility, the Board did not accept the [Applicant’s] assertions of ill-treatment or serious harm. The Board concluded that the [Applicant] failed to establish any of the assertions that she had made in the non-refoulement protection claim and the [Applicant’s] evidence was inconsistent and wholly unreliable. These are findings of fact, which the court in a judicial review will not interfere with.

[11] Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the [Applicant’s] issue with commonsense and high standard of fairness…

[12] For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave…”

THIS APPEAL

7.In her Notice of Appeal filed on 16 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 any 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.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’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

10.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.

11.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.

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

The Applicant, acting in person