Re Eko Wati Suwarno

CACV 501/2020

[2021] HKCA 770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 501 OF 2020

(ON APPEAL FROM HCAL 2020/2018)

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Before:  Hon Barma JA and L Wong J in Court

Date of Hearing:  24 May 2021

Date of Judgment: 4 June 2021

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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 appeal against the decision of Deputy High Court Judge Bruno Chan given on 16 July 2020 refusing to grant extension of time for her application for leave for judicial review and dismissing her application for leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 11 May 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 26 August 2015 and 25 October 2016 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Indonesia.  She last entered Hong Kong on 26 November 2007 to work as a foreign domestic helper.  She was arrested on 26 March 2010 for undertaking unauthorized employment.  After serving her sentence, she lodged a torture claim which was dismissed by the Director on 20 May 2011.   She lodged a non-refoulement claim on 19 September 2014. 

3.The applicant’s claim was based on threats from her family and fellow villagers for her relationship with her Christian boyfriend.  The details of the applicant’s claim have been summarised by the judge at [1] to [8] of the CALL-1 Form.

4.By a Notice of Decision dated 26 August 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1] and the persecution risk^[2].

5.By a Notice of Further Decision dated 25 October 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk^[3], and decided against her.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 10 November 2016, the Board dismissed the appeal on 11 May 2017 (“Board’s Decision”).

7.At [36] of the Board’s Decision, the Board held that the applicant may well have had matrimonial difficulties with her ex-husband but her account regarding her boyfriend was vague, unconvincing and generally lacking in credibility.  The Board was also satisfied at [48] that internal relocation would be viable.

The judge’s decision

8.The applicant filed a Form 86 on 24 September 2018 which contained no ground for seeking relief.

9.In her affirmation in support of the leave application dated 24 September 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [14] of the CALL-1 Form:

(1)  procedural impropriety in the failure of the Director and the Board to conduct sufficient inquiry into the relevant country of origin conditions;

(2)  procedural impropriety/irrationality in their failure to provide reasons for assessing that there was no BOR 3 risk and/or no sufficient basis to support their conclusion of lack of BOR 3 risk;

(3)  error/misdirection in law in their failure to take into account the consideration of psychological strain and threats to the Applicant personally or the threats to kill her;

(4)  error/misdirection in law in their failure to apply or properly apply paragraph 2 of the UN Committee General Comment No 2 concerning the obligation of a signatory state to adopt reforms or means of redress aimed at ensuring the safety of its citizens which are effective in any event;

(5)  procedural impropriety in their failure to consider the concept of extended state acquiescence as expounded in the case of TK v Jenkins; and

(6)  procedural impropriety in their failure to assess her fear properly of harm from her ex-husband upon her return to her home country despite various threats from him to her and her family.  

10.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review and dismissed her application for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [15] to [23] of the CALL-1 Form:

“15. The Applicant was however by then more than one year late with her application, as Order 53 Rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

16. As the last day of the three-month period for the Applicant to file her Form 86 fell on 11 August 2017, she was therefore more than 13 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

17. In the Applicant’s case, a delay of more than 13 months must be considered as very substantial or excessive, for which she explained in both her supporting affirmation and at the hearing that she never received the Board’s decision in the mail and was therefore not aware of it until 24 September 2018 when she reported to the Immigration Department that she was informed of the decision but by then she was way out of time.

18. The record however shows that the Board’s decision was sent on the same day of 11 May 2017 to the Applicant’s last reported address and had not been returned through undelivered mail, and that apart from her own words the Applicant has not produced any other independent evidence to corroborate her claim. Furthermore, in her same supporting affirmation she stated in paragraph 13 that ‘By a letter dated 11 May 2017 the TCAB gave me a Decision that my appeal/petition has been dismissed’ which clearly contradicts her claim that she never received the decision from the Board. As such and in the premises I am not satisfied that the Applicant has provided any good or valid reason for her such serious delay.

19. As for the merits of her intended application, her proposed grounds are however all just broad and vague assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Board had erred in their decisions, or in what way did they fail to conduct sufficient inquiry into the relevant COI, or what relevancy is the concept of extended state acquiescence to her claim, and that it is plainly factually incorrect to say that they failed to give their reasons for rejecting her claim for BOR 3 risk when they were clearly set out in paragraphs 31 – 33 and paragraphs 50 – 51 respectively of their decisions. As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

20. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his or her claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

21. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

23. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her application.”

Grounds for appeal

11.The applicant was late in bringing her appeal from the judge’s decision.  After considering the explanation offered by the applicant and the situation of the postal service and the High Court Registry, the judge granted an extension of time to appeal on 10 September 2020.

12.In the Notice of Appeal dated 22 September 2020, the applicant contended that:

“i) failure to consider my fear, that I would be face real risk upon refoulement to my country of origin, that I would be face real risk in there.

ii)  failure to consider my claim under BOR 3 risk”

13.In her skeleton submissions dated 20 April 2021, the applicant submitted that:

(1)  the Board and the Director failed to consider the fact that she would face real risk to her life upon refoulement because of the threats from her enemies;

(2)  the Board and the Director failed to consider the severe mental distress arising out of the difficulties caused by her enemies in her home country; and

(3)  the Board and the Director failed to clearly explain why she would not be the subject of persecution upon refoulement.  The applicant also contended that her claim was not a personal or private dispute.

14.The applicant agreed by a letter of 22 September 2020 that the appeal could be heard by two judges.  We heard the appeal on 24 May 2021, at which the applicant appeared but had nothing to add to her Notice of Appeal and skeleton submissions. 

Discussion

15.The grounds of appeal set out in the written submission complain of errors on the part of the Director and the Board, but do not identify any error on the part of the judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

16.As for the grounds raised in the Notice of Appeal, the applicant did not explain whether those grounds were directed towards the decision by the judge, the Board or the Director.  If they were directed towards the Board and the Director, for reasons given in the preceding paragraph, those grounds are not valid grounds of appeal.

17.Even if we accept that the grounds in the Notice of Appeal were directed towards the judge’s decision, as this court has repeatedly held, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See:  Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was correct to do so.

18.In any event, all of the grounds advanced by the applicant are vague and lack particulars.  These grounds should also be dismissed for this reason.

19.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant appeared in person