Re Alci Dalentang

CAMP 171/2019

[2020] HKCA 43

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 171 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 996/2018)

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Before: Hon Chu JA and Barma JA in Court

Date of Judgment: 10 January 2020

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung given on 29 November 2018 dismissing the applicant’s application for judicial review for want of prosecution. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 26 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 6 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Indonesia.  She entered Hong Kong in around end of May 2005 to work as a foreign domestic helper.  She lodged a non-refoulement claim on March 2015. 

3.The applicant’s claim was based on threats from her creditor.  The details of the applicant’s claim have been summarised by the Board at [13] to [26] of its decision dated 26 February 2018.

4.By a Notice of Decision dated 6 June 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 12 February 2018, the Board dismissed the appeal on 26 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [70] and [80] of the Board’s Decision, the Board found that the applicant’s case was not credible.

The judge’s decision

6.The applicant filed a Form 86 on 1 June 2018 which contained the following grounds for judicial review:

(1)  the Board unlawfully fettered his discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness;

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  the Board misdirected itself on the law by considering that the applicant has to experience torture in the past in order to establish substantial grounds for believing that a risk of torture exists;

(6)  procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

(7)  irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(8)  irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

(9)  irrationality in the Board’s failure to analyze and assess whether state protection exists and misdirected itself as to the extended meaning of state protection;

(10)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(11)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(12)  procedural impropriety/unfairness by the Board in applying the incorrect standard of proof in its decision; and

(13)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

7.In her affirmation in support of the leave application dated 1 June 2018, the applicant advanced the following grounds for judicial review:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)  the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for her to return; and

(3)  the Board gave its decision on BOR 2 risk before this claim was screened by the Director.

8.The applicant requested an oral hearing but did not appear at the hearing.  The judge dismissed her application on 29 November 2018 for want of prosecution, based on her failure to appear.

Application for extension of time to appeal and grounds for appeal

9.By a summons filed on 24 July 2019, the applicant applied for an extension of time to appeal to this court.  She stated in the summons that “I would like to apply for out of time appeal to this order because as non-Hong Kong citizen.  I don’t know the law steps to appeal and no friends help me.”  In the affirmation filed on 24 July 2019, the applicant deposed the same.

10.In her skeleton submissions dated 15 August 2019, the applicant submitted that:

(1)  she could not fully present her case due to “the lack of chance for interview”, which we take to mean her failure to attend at the hearing; and

(2)  the judge wrongly questioned her credibility.

Discussion

11.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

12.Even though the applicant has not provided any reasonable explanation for the delay in bringing the intended appeal, and the delay was substantial, we nonetheless go on to consider the merits of the intended appeal.

13.As we have held in re: Abdus Salam [2019] HKCA 1091 at [26], it was not appropriate for the application to have been dismissed for want of prosecution merely because the applicant had not appeared at the hearing for leave for judicial review.  We will therefore consider the grounds of judicial review in order to deal with the present application.

14.The applicant has advanced a number of broad grounds for judicial review without giving any particulars.  She has not explained how those grounds apply to the present application.

15.For the grounds based on the use of Country of Origin Information (COI) and news articles, the applicant did not give particulars.  Nor did she identify any public law error committed by the Board.

16.For the grounds based on the findings related to state protection and pattern of human rights violation, we note that the Board dismissed the appeal primarily based on the lack of credibility of the applicant’s evidence.  In those circumstances, it was not necessary for the Board to make such findings.  As for the ground based on the lack of psychological and psychiatric reports, the applicant has failed to explain the need and relevance of those reports.

17.In relation to the ground based on the late provision of hearing bundle, the lack of language and legal assistance and the failure to afford greater care to a self-represented claimant, the applicant failed to identify any real prejudice caused by the above. 

18.The applicant also complained that the Board considered BOR 2 risk without it being first screened by the Director.  This is factually untrue as the Director’s Decision already covered this risk.

19.The applicant also contended that her credibility should not have been questioned. As this court has repeatedly held, an application for judicial review does not operate as a further appeal, such an evaluation is essentially a matter for the Director and the Board as the primary decision makers and the court will only interfere with the decision of the Director of the Board on public law grounds. Having carefully considered all the material before us, we are of the view that no public law error has been made out here.

20.We therefore see no merit in any of the grounds for judicial review and grounds of appeal. We will not grant extension of time for a hopeless appeal.  The summons of 24 July 2019 is dismissed accordingly.

21.We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, Cap. 4A, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant acting in person