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

CAMP 98 /2020

[2021] HKCA 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 98 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1617 OF 2018)

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Before: Hon Kwan VP and Au JA in Court

Date of Written Submission: 15 October 2020

Date of Judgment: 5 February 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 11 December 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decisions of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim^[1].

2.The applicant filed a summons on 16 January 2020 seeking leave to appeal against that decision out of time and for leave to adduce new ground of appeal, because the 14-day period to file her appeal ended on 27 December 2019.  A hearing of the application was conducted on 7 May 2020.  On 2 July 2020, the judge handed down his decision dismissing the summons as the applicant was unable to show merits in the intended appeal^[2].

3.On 14 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 11 December 2019.

4.The applicant is a national of Indonesia.  She is 38 years old.  She came to Hong Kong on 26 October 2008 with permission to work as a domestic helper.  Her employment contract was terminated prematurely on 20 December 2008.  She overstayed subsequently and was arrested by the Immigration Department for breach of stay on 27 February 2013.  She lodged a non-refoulement claim on 7 March 2014 on the basis that she would be ill-treated or killed by her ex-boyfriend if she is to be returned to Indonesia.

The Director’s first decision

5.By a Notice of Decision dated 29 June 2015, the Director of Immigration (“Director”) rejected the applicant’s claim on BOR 3 risk^[3], torture risk^[4] and persecution risk^[5]. 

The Board’s first decision

6.The applicant appealed against the said decision of the Director to the Board.  The Board conducted a hearing on 25 October 2016.

7.The Board considered that the applicant’s experience did not amount to persecution as her problem is purely a domestic dispute which did not involve any state actor or concern any torture risk under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  The Board also found that the applicant did not suffer any serious harm or serious injury.  The Board did not accept there are substantial grounds for believing that the applicant would face a genuine and substantial risk of being subjected to severe ill-treatment or torture if she is refouled to Indonesia.  The Board further assessed that the claimed risk of harm is confined to local area and it is not unreasonable for the applicant to relocate to other places in Indonesia.  Therefore, the Board rejected the appeal on 14 July 2017.

The Director’s further decision

8.By a Notice of Further Decision dated 3 November 2017, the Director rejected the applicant’s claim on BOR 2 risk^[6] in the absence of response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim. 

The Board’s further decision

9.The applicant appealed against the Director’s further decision to the Board.  The Board took the view that there was nothing which appeared to warrant an oral hearing as there were no new materials or facts to consider.  Thus, the Board assessed the appeal on the papers.

10.The Board found that there was no evidence to indicate that the applicant had suffered physical and/or mental suffering of the requisite severity in the past and there was also no evidence to show that she was a person of interest to the Indonesian government.  Therefore, the Board concluded that the applicant’s claim of BOR 2 risk failed and dismissed the appeal on 9 August 2018.

The intended judicial review

11.The applicant filed a Form 86 and an affirmation on 13 August 2018 to seek leave to apply for judicial review against the decisions of the Board. 

12.In her supporting affirmation, she simply reiterated that her ex-boyfriend will kill her if she returns to Indonesia.

The judge’s decision

13.The applicant did not attend the hearing scheduled on 21 June 2019 before DHCJ K W Lung.  The judge considered the leave application on the papers.  The judge dismissed the application on 11 December 2019 as the applicant failed to show that she has any reasonable prospect of success in her proposed judicial review.

Grounds of intended appeal

14.The applicant stated as her grounds of appeal in her supporting affirmation filed on 14 July 2020 that she did not have the appropriate means nor did she receive the decision on time.

15.In her written submissions, she stressed that high standards of fairness are required in the determination of torture claim and submitted that the Board acted in a procedurally unfair manner without properly assessing her credibility.

Analysis and disposition

16.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.

17.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 11 December 2019.  She was late by nearly three weeks. 

18.The applicant explained to the judge at the hearing on 7 May 2020 that she moved to Cheung Sha Wan about one year ago and did not receive the judgment.  However, she did not file any notice of change of address with the court.  Her explanation for the delay is not justifiable.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his or her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

19.As her delay is inexcusable, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

20.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.

21.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.

22.The applicant does not have any viable ground to reverse the judge’s decision.  In particular, she failed to identify any error in the judge’s decision.  Her contention against the Board is just bare assertion without particulars or evidence in support.  She failed to put forward any evidence to rebut the findings of the Board. 

23.For the above reasons, the applicant failed to show she has any prospect of success in the intended appeal. We refuse to grant an extension of time to appeal against the judge’s decision of 11 December 2019 and dismiss the summons filed on 14 July 2020.

The Applicant, acting in person