Re Sae-jao Moei-on

CAMP 255/2021

[2022] HKCA 122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 255 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1822 OF 2018)

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Before: Hon Barma and G Lam JJA in Court

Date of Written Submissions: 29 July 2021

Date of Judgment: 21 January 2022

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 10 July 2020[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 17 August 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 20 September 2017 rejecting the applicant’s non-refoulement claim.

2.On 8 July 2021, the Judge refused to extend the time for the applicant to appeal against the Judge’s decision of 10 July 2020.[2]

Background

3.The applicant is a Thai national. She last arrived in Hong Kong on 10 April 2006 and was employed as a domestic helper until 3 September 2007; her employment ended when her employer passed away. She did not depart, and has overstayed. She surrendered herself to the Immigration Department on 6 June 2016, and lodged her non-refoulement claim on 11 September 2016.

4.The applicant’s claim was based on the fear that, if she returned to Thailand, she would be harmed or even killed by her abusive ex-husband and his gangsters or friends. She said her ex-husband abused her and assaulted her. She also said that her ex-husband’s friends had accused her of reporting to the police that those friends had murdered someone, and that her ex-husband had threatened to kill her if she had really done so. The details of her claim were set out at paragraph 10 of the Board’s decision.

5.By notice of decision dated 20 September 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her. The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

6.The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 19 June 2018, during which the applicant gave oral testimony and answered questions from the Board with the assistance of an interpreter. The Board accepted the applicant’s claims relating to her fear of her ex-husband due to the abusive relationship, but rejected her claims relating to the ex-husband’s friends and the murder. The Board noted that the applicant had abandoned her claims based on her fear of the Thai police. The Board found that there was a real risk that the ex-husband would try to target the applicant for further physical and psychological abuse if she returned, and that there was therefore a BOR 3 risk, although not any risk on the other grounds. However, the Board noted that the applicant was from Kamphaeng Phet Province of Thailand and that she could safely return to Thailand and relocate to live in an urban area with a large population far from her home village, such as Bangkok. The risk of her ex-husband being aware of her return would be remote, and the risk of his being able to locate her would be even further remote. The Board also found that internal relocation was viable and reasonable without undue hardship.

7.As a result the Board dismissed the applicant’s appeal on 17 August 2018 in respect of all applicable grounds.

The Judge’s decisions in the court below

8.On 4 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her supporting affirmation, the applicant stated that her claim had been rejected because she was unable to submit some supporting documents, and that her life would still be in danger if she were to return to Thailand, especially from her ex-husband who had injured her many times.

9.Following a hearing on 15 January 2020 attended by the applicant, on 10 July 2020 the Judge refused to grant her leave to apply for judicial review. The reasons were set out at [14] – [18] of the Form CALL-1 as follows:

“ 14. The applicant appeared before me. She said that she was treated fairly when she appeared before the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and her friend explained to her the Board’s Decision.

15. She said that she had no comments on the Board’s Decision.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

17. There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

18. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

10.On 27 July 2020, the applicant applied by a summons for an extension of time to appeal against the decision of the Judge. In the summons, the applicant explained that she still had a problem in her country and that she could not afford a lawyer but would like to explain her problem in an oral hearing.

11.In his decision dated 8 July 2021, decided on paper without an oral hearing, the Judge refused to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal, and dismissed the summons.

The renewed application before this Court

12.On 16 July 2021, the applicant took out a summons seeking an extension of time from this Court for her to appeal against the Judge’s refusal to grant leave for judicial review. In her summons and her supporting affirmation, she stated she still had “life problems” because of her ex-husband who was a dangerous man. She said she respected the decision of the court, but she was still scared to go back to her country because her ex-husband was still in her area. She said she would try her best to obtain her supporting document. She requested an oral hearing so that she could explain the present situation. However, she did not specify any grounds of appeal against the Judge’s decision.

13.The applicant lodged her written submissions on 29 July 2021, in which she briefly referred to the basis for her non-refoulement claim and reiterated that she would try her best to obtain her supporting document and inform of the present situation later, but still did not set out any grounds of appeal. Enclosed with her submissions was a translation of a police report from a police station in Thailand dated 23 July 2021, stating that the applicant’s mother’s niece had reported that the applicant’s mother feared that applicant’s ex-husband would harm the applicant in future.

Discussion

14.Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.The applicant’s application to the Judge for extension of time to appeal was late by only 3 days. As the delay was short and the applicant was not legally represented, we have proceeded to decide the present application on the basis of the merits of the intended appeal.

16.In assessing the merits, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, it has to be emphasised that the role of the court in judicial review is not to provide a further avenue of appeal. The court does not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward for reversing 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 the appeal were a fresh application for judicial review.

17.In the present case, the Board rejected the applicant’s non-refoulement claim due to its finding that internal relocation was viable. As such, the risk of harm from the applicant’s ex-husband would be attenuated in the event of refoulement if she was to relocate elsewhere in Thailand, especially a large urban area far away from her home village. This finding is within the province of the Board, and the applicant has not been able to put forward any public law ground to impugn it.

18.Nor has the applicant been able to put forward any ground of appeal that shows any error in the Judge’s decision.

19.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

20.For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The summons of 16 July 2021 is accordingly dismissed.

The Applicant, unrepresented, acting in person