Fitria-nur-hidayati v. Torture Claims Appeal Board and Another

CAMP 184/2021

[2021] HKCA 1839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 184 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 866 OF 2018)

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Before: Hon Kwan VP and G Lam JA in Court

Date of Written Submission: 6 July 2021

Date of Judgment: 10 December 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 14 September 2020, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicant to seek leave to bring judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim^[1].

2.On 18 March 2021, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no prospect of success in the intended appeal^[2].

3.On 21 May 2021, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.The applicant is a national of Indonesia.  She is 39 years old.  She came to Hong Kong to work as a foreign domestic helper in January 2013.  Her employment contract was prematurely terminated on 10 September 2013 and she subsequently overstayed.  She surrendered to the Immigration Department on 14 August 2014 and lodged a non-refoulement claim on 4 September 2014.  Her claim was made on the basis that she will be harmed or killed by her creditor for failing to repay her loan if she returns to Indonesia.  Her daughter was born in Hong Kong on 25 October 2014 out of wedlock.  Her daughter’s non-refoulement claim was raised on 23 December 2014 on the same basis with an additional claim of fear of harm from the applicant’s father for bringing shame to the family.  

5.By a Notice of Decision dated 10 April 2015, the Director rejected their non-refoulement claims on torture risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

6.The applicant and her daughter appealed against the Director’s decision to the Board.  Both attended the hearing before the Board on 15 September 2016. 

7.By a Notice of Further Decision dated 23 March 2017, the Director rejected their claims on BOR 2 risk^[6] in the absence of response from them to the invitation to submit additional facts which may be relevant to their non-refoulement claims.

8.The Board then invited the applicant to submit additional grounds, if any, against the Director’s further decision but received no response from her. 

9.The Board assessed that the feared ill-treatment is unlikely to materialize upon their return to Indonesia.  The Board held that the threats from the creditor are merely empty threats uttered for pressing for repayment as the creditor has never inflicted real harm to the applicant’s family even though he had previously given death threats to the applicant and her family and lives near her family.  Besides, the creditor has already stopped making threats to her family according to the applicant’s own evidence.  As for the alleged fear for risk of harm from the applicant’s father, the Board noted that there has been a change in attitude at a later stage and the father has shown concern for the applicant.  The Board considered that the level of risk from the applicant’s father is extremely low.  Furthermore, the problems with the creditor and the applicant’s father are private in nature not involving the consent or acquiescence of the Indonesian government.  There is also no evidence in this case relating to the arbitrary deprivation of life.  In addition, the Board assessed that the availability of state protection and internal relocation alternatives in Indonesia further lowers or negates the perceived risk.  Therefore, the Board dismissed the appeal on 2 June 2017.

The judge’s decision

10.On 18 May 2018, the applicant applied for leave to apply for judicial review against the decisions of the Director and the Board well outside the three-month period stipulated under Order 53 rule 4(1) of the Rules of the High Court (Cap 4A).  She did not set out any specific grounds for her intended judicial review and her daughter was not named as a party in the application. She did not request for an oral hearing so DHCJ Bruno Chan considered the application on paper.  The judge considered that there is no good reason for the substantial delay of more than 8 months.  The judge also held that there is no error of law, procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board.  Thus, the judge concluded that the intended judicial review has no prospect of success and refused to grant extension of time for the leave application on 14 September 2020.

Grounds of appeal

11.The applicant did not provide any grounds of appeal in her summons.  She only stated in her affirmation that she totally disagrees with the decisions of the authorities because she does not know English and the court procedures.

12.In her written submissions, she stated that she did not receive the letter from the court and did not have the supporting documents requested by the court.  She also reiterated the problem she may face if she returns to her country.

Analysis

13.The applicant filed a summons and an affirmation on 21 May 2021 to seek to add her son and daughter as parties to these proceedings.  On 23 June 2021, the Registrar of Civil Appeals directed the applicant to make written submissions on why additional parties could be added to the proceedings at this stage. However, the applicant has not lodged any submission in this respect. 

14.The applicant’s daughter was not included as a party in the application for leave to bring judicial review.  Her son was not even a party in the relevant decisions of the Director and the Board.  There is no reason why the Court of Appeal should allow the joinder of her son and daughter as parties at this late stage.  We dismiss the summons for their joinder filed on 21 May 2021.

15.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.

16.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 judge’s order was made on 14 September 2020.  The applicant took out a summons in the court below on 5 October 2020.  She was late for a week. 

17.The applicant explained at the hearing at the court below that the time for appeal has already expired by the time she was able to get her friend to help her with the application.  Even if we are minded to accept this explanation for the delay, we would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[7].

18.In assessing the merit 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.

19.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 decision of the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.In the present case, the applicant did not put forward any reasonably arguable grounds of appeal.  The judge at the court below provided well-founded reasons for his decision.  The applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

21.For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We therefore refuse to grant leave to appeal out of time and dismiss the summons filed on 21 May 2021.

The Applicant, acting in person

[1] [2020] HKCFI 2243

[2] [2021] HKCFI 636

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[7] Re Gurung Min Bahadur [2018] HKCA 226 §10