Re Choliyah

CACV 83/2025, [2025] HKCA 707

On appeal from [2025] HKCFI 603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 83 OF 2025

(ON APPEAL FROM HCAL NO. 2324 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 11 February 2025[1] refusing leave to the applicant to apply for judicial review against the decision dated 15 May 2019 of the Torture Claims Appeal Board (“the Board”) dismissing the applicant’s appeal against the decision dated 26 September 2018 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim.

2.The applicant’s appeal was scheduled to be heard on 18 July 2025. The applicant was directed to lodge her written skeleton argument not less than 28 days before the hearing and further warned that if she failed to do so, she shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with her appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 19 May 2025 and the Notice of Hearing dated 2 June 2025. 

3.Despite the directions, the applicant has failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.  

The applicant’s claim

4.The applicant is a national of Indonesia, aged 41. She first arrived in Hong Kong to work as a foreign domestic helper in 2007. After her employment contract was prematurely terminated on 1 February 2012, she did not depart and has since overstayed. She was arrested for overstaying on 7 August 2012 and was later convicted and sentenced. She had previously lodged a torture claim[2] which was rejected on 14 May 2013 and the appeal was dismissed by the Board on 24 June 2013. On 29 August 2018, she submitted the Supplemental Claim Form for the assessment on all applicable grounds (other than the torture risk ground) under the Unified Screening Mechanism.

5.The applicant's claim was on the basis that, if refouled, she would be harmed or killed by her husband Gampang Nursidik, a habitual gambler who had defaulted on a loan and blamed the applicant for failing to repay the debt. The details of her claim were set out at [15] of the Board’s Decision. In gist, the applicant claimed that she was subjected to domestic violence from her husband, whom she married in 2003 and had a son, after he defaulted on a loan of 45 million Indonesian Rupiahs borrowed from a loan shark in 2006. According to the applicant, Gampang had hit her with a broomstick and had burnt her with cigarette butts thrice. He had once thrown a kitchen knife at her, resulting in a superficial cut on her right foot. The applicant self-treated her injuries at home and did not report the incidents to the police. In December 2006, she left her husband and stayed at an employment agency in Jakarta. In April 2007, she flew to Hong Kong to work as a domestic helper. She had ceased to remit money to Gampang since 2008 and had not contacted him since 2017. Her son had remained in her husband’s custody after she left Indonesia.

The Director’s and the Board’s decision

6.By a decision dated 26 September 2018, the Director rejected her claim based on BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds. The applicant appealed to the Board. A hearing took place on 8 March 2019 during which the applicant had answered questions from the Board. By a decision given on 15 May 2019, the Board dismissed her appeal.

7.In brief, the Board accepted that the applicant was subjected to physical violence by her husband, finding that her account was straightforward, consistent and coherent. However, having considered the evidence, the Board found that the applicant has not made out a case for non-refoulement protection under any of the applicable grounds, given the minor nature of the injuries which did not attain the minimum level of severity, and that her fear of ill-treatment was stemmed from a purely private and domestic conflict with her husband without any state involvement. Having regard to the available country of origin information (COI), the Board further assessed that state protection would be available to the applicant and that internal relocation to other parts of Indonesia is a viable option for her, which would remove or reduce any risk of harm that she might face.

The Judge’s decision

8.By a Form 86 dated 8 July 2019 which was filed on 13 August 2019, the applicant applied for leave to judicially review the Board's decision. She set out her grounds of review in her supporting affirmation, which was summarised by the Judge at [13] of the judgment as follows:  

“13. The Applicant advanced the following five grounds in Form 86:

(1) the Director’s and the Board’s decisions are unfair and unreasonable;

(2) the Director failed to give proper weightage to the presence of state acquiescence;

(3) the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case;

(4) the Director’s attitude was unfair; and

(5)   the Director has failed to attain the high standard of fairness required by the Wednesbury test.”

9.The Judge held an oral hearing on 22 January 2025 which was attended by the applicant. By a judgment dated 11 February 2025, the Judge refused to give leave for judicial review. He gave his reasons at [13] to [15] as follows:

"13. … These grounds are directed mostly at the Director and not the Board.  As the Director’s decision in the Notice had been superseded by the Board’s Decision (see Re Moshsin Ali[6]) and is not the subject matter of this application, the Court assumed for the benefit of the Applicant that they are directed at the Board as well.

14.  These grounds are all phrased in general terms and lacking in particulars.  The Applicant asserted that they were all written by her and she would be able to answer the Court’s questions relating to those grounds.  However, when asked for particulars, she could not provide any other than it is dangerous for her to return to Indonesia, she needed more time to stay in Hong Kong and that she forgot about the particulars and the evidence about state acquiescence.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board accepted the Applicant’s account and assessed her claim on the basis of her account as she asserted.  It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded.  Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the three remaining applicable grounds under the USM.  These are mixed finding of law and of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Insofar as these are finding of the law, they are absolutely correct.  Insofar as they are finding of fact, they are solely within the realm of the Board.  The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.” 

This appeal

10.On 20 February 2025, the applicant filed a Notice of Appeal to appeal the Judge's decision. She stated in her Notice of Appeal that the Judge did not consider her judicial review and the Board’s decision was wrong.

Discussion

11.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 is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.Further, it is well established that assessments of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

13.In light of the established legal principles set out above, we are of the view that the appeal has no merits. Our reasons are as follows:

(1)  Critically, the applicant has failed to identify any error in the Judge’s decision or the reasons he gave for his decision. The Judge rejected the grounds raised by the applicant as not properly elaborated or presented with the relevant or necessary particulars to show that the Board had erred in its decision and assessment of her claim.  In our view, the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.   

(2)  Further, the Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that the decision is erroneous in law or irrational or there is procedural irregularity or unfairness. The Board accepted the applicant’s account of the physical violence inflicted upon her, but concluded on the basis of the nature of the injuries and the domestic dispute between her and her husband that her claim did not satisfy the legal requirements for non-refoulement protection under any of the applicable grounds. These are findings within the purview of the Board. We agree with the Judge that on the available materials, there is no proper basis to challenge the Board’s conclusions as being erroneous in law or irrational. 

14.Accordingly, we dismiss the appeal.

[1] [2025] HKCFI 603

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] [2018] HKCA 549