Sentot Asep Muhaimin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 103/2020

[2021] HKCA 95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 103 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1746 OF 2018)

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BETWEEN

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Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submission:  20 October 2020

Date of Judgment:  29 January 2021

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J U D G M E N T

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

1.On 20 August 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.The applicant filed a summons on 23 September 2019 seeking leave to appeal against that decision out of time, because the 14-day period to file his appeal ended on 14 September 2019, as the period of the summer vacation shall be excluded in reckoning the prescribed period.  A hearing of the application was conducted on 7 January 2020.  On 26 June 2020, the judge handed down his decision refusing to grant leave to the applicant to appeal out of time as the applicant was unable to show he has a reasonable prospect of success in the intended appeal[2].

3.On 17 July 2020, the applicant took out a renewed application in the Court of Appeal for leave to appeal out of time against the judge's decision of 20 August 2019.

4.The applicant is a national of Indonesia.  He is 31 years old.  He arrived in Hong Kong as a visitor on 13 August 2015 and overstayed.  He surrendered to the Immigration Department on 2 February 2016 and lodged a non-refoulement claim on 4 July 2016.  His claim was made on the basis that he would be killed by his creditor if he is to be returned to Indonesia as he is unable to repay his debt.

The Director’s decision

5.By a Notice of Decision dated 31 July 2017, the Director of Immigration (“Director”) rejected the applicant’s claim on all applicable grounds including BOR 2 risk[3], BOR 3 risk[4], torture risk[5] and persecution risk[6].

The Board’s decision

6.The applicant appealed against the Director’s decision to the Board.  The Board conducted a hearing on 18 May 2018.

7.The Board considered the applicant's evidence not credible because of the significant discrepancies.  The Board held that the alleged ill-treatment had not attained the requisite minimum level of severity.  The Board also found that there was no public official involved and there was no evidence of state acquiescence.  According to the applicant’s own evidence, he did not have any fear of capital punishment by the government of his country so the Board decided that he was not subjected to a BOR 2 risk upon his return to Indonesia.  Besides, the Board held that the applicant's fear did not come within the definition of persecution.  The Board further assessed that the applicant has viable option to relocate to other areas in Indonesia to avoid the alleged risk.  Therefore, the Board held that the application failed on all applicable grounds and dismissed the appeal on 22 August 2018.

The intended judicial review

8.The applicant filed a Form 86 and an affirmation on 27 August 2018 to seek leave to apply for judicial review against the decision of the Board.  He put forward the following grounds for judicial review:

(1)  the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2)  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3)  he was confused at the appeal hearing;

(4)  the adjudicator had relied upon hearsay information, outdated materials in relation to Country of Origin Information (COI) and source of news which is not officially recognized;

(5)  the BOR 2 risk was assessed without screening; and

(6)  the Director and the Board reached their Decisions without understanding his situation.

The judge’s decision

9.The applicant attended the hearing before DHCJ K W Lung on 21 March 2019.  The judge rejected grounds (1) to (3) as the applicant confirmed at the hearing before the judge that he had had a fair hearing before the adjudicator and his friend had explained the contents of the hearing bundle as well as the Board’s decision to him.  Ground (5) failed as the claim on BOR 2 risk was in fact considered in the screening by the Director.  The rest of the grounds were rejected as the judge found that they were not supported by any evidence. 

Grounds of intended appeal

10.The applicant stated the following grounds of appeal in his supporting affirmation filed on 17 July 2020:

(1)  the judge was wrong in law in holding that there was no state acquiescence or involvement; and

(2)  the judge failed to provide detailed reason in support of his decision.

11.His contentions in his written submissions may be summarized as follows:

(1)  high standards of fairness are required in the determination of torture claim;

(2)  the Board erred in approaching the matter by simply trying to see whether it could find fault with the decision of the Director;

(3)  the Board failed to consider the conditions of the applicant’s country of origin; and

(4)  the decision-maker is under a duty to act fairly.

Analysis and disposition

12.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 20 August 2019.  He was late by 9 days.  He explained in the affirmation filed with the court below that he did not receive the order on time.  As the delay is not substantial, his explanation may be considered acceptable.

14.In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.In the present case, the judge did not make any determination in law in relation to state acquiescence or involvement in his decision.  Furthermore, the judge did state clearly his reasons for dismissing the leave application. 

17.Although the judge failed to address the complaint pertaining to the lack of legal representation, which was mentioned in the applicant’s affirmation, this omission would not assist the applicant’s appeal as it is well established that an applicant does not have absolute right of free legal representation at every stage of the proceedings (Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178) and the applicant had already had the benefit of legal representation at the screening stage.

18.The applicant’s written submissions against the Board are without basis as they are not supported by evidence.  In particular, it is clear from the Board’s decision that the Board had made its own assessment on the applicant’s evidence and duly considered the country of origin information in the assessment of the claim. 

19.For the above reasons, the applicant failed to show he has a reasonable prospect of success in the intended appeal.  We refuse to grant an extension of time to appeal against the judge’s decision of 20 August 2019 and dismiss the summons filed on 17 July 2020.

The Applicant, acting in person