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Re Rufina Maria

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date18 February 2021
Neutral Citation[2021] HKCA 178
Year2021
Judgement NumberCACV354/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV354/2020 RE RUFINA MARIA

CACV 354/2020

[2021] HKCA 178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 354 OF 2020

(ON APPEAL FROM HCAL 2436/2018)

__________________________

RE: RUFINA MARIA Applicant

__________________________

Before: Hon Lam VP and Yuen JA in Court
Date of Hearing: 8 February 2021
Date of Judgment: 18 February 2021

______________________

JUDGMENT

______________________

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

Introduction

1. On 28 July 2020, Deputy High Court Judge KW Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 5 October 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 9 March 2018 rejecting the applicant’s non-refoulement claim.

2. On 11 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3. The applicant is an Indonesian national. She was previously employed as a domestic helper in Hong Kong from 2002 to 30 September 2015, after which she left Hong Kong on 13 October 2015. The applicant then came back to Hong Kong on 26 December 2016 and was permitted to stay as a visitor until 25 January 2017. She did not leave Hong Kong and instead surrendered to the Immigration Department on 26 January 2017. She lodged a non-refoulement claim on 10 February 2017.

4. The applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed or even killed by her creditor due to the debt she owed. The factual background was succinctly summarized by the Judge at [5] of the Form CALL-1 ([2020] HKCFI 1728).

5. By notice of decision dated 9 March 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against them. The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 3 July 2018, during which the applicant was interviewed by the Board. The Board found that the applicant was not telling the truth regarding the alleged threats from her creditor, and that her evidence in that aspect was vague and unbelievable. The Board also found that in any event that there was no real risk of harm, or that the risk of harm was low, due to the low intensity and frequency of the alleged threats. The Board considered that, if necessary, internal relocation was viable. Thus the Board dismissed the applicant’s appeal on 5 October 2018 on all the applicable grounds.

Decision of the court below

7. On 1 November 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision. In her affirmation in support of her Form 86, she stated that she was afraid to return to her country, that her creditor would kill her, and that she wanted to stay in Hong Kong.

8. Following a hearing on 2 October 2019 at which the applicant attended in person before the Judge, on 28 July 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [13] – [16] of the Form CALL-1 ([2020] HKCFI 1728, HCAL 2436/2018) as follows:

“ 13. The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.

14. She said that she did not understand the Board’s Decision. I therefore explained the Board’s findings in paragraph 10 above to her and asked her if she had any comments on them. She said that she had no comments.

15. 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.’

16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

Appeal to this Court

9. On 11 August 2020, the applicant filed her Notice of Appeal against the Judge’s decision. Her ground of appeal was that the Board disregarded her dangerous situation.

10. On the same day that she filed her Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

11. The applicant lodged her written submissions on appeal on 14 January 2021. In those submissions the applicant argued that there was procedural...

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