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

CAMP 289/2021

[2022] HKCA 390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 289 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2971 OF 2018)

________________________

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Written Submission: 5 August 2021

Date of Judgment: 18 March 2022

________________________

J U D G M E N T

________________________

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

1.On 16 June 2020, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim^[1].

2.On 13 July 2021, Deputy High Court Judge P Li dismissed the applicant’s application for extension of time to appeal against the said decision as there are no merits in the intended appeal^[2].

3.On 27 July 2021, the applicant filed the present summons with the Court of Appeal seeking the order made by DHCJ Li dated 13 July 2021 be set aside and leave to file a notice of appeal be granted.  In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of DHCJ Lung dated 16 June 2020.

4.The applicant is a national of Indonesia.  She is 40 years old.  She entered Hong Kong legally on 1 November 2013 as a domestic helper and was arrested on overstaying on 28 October 2014.  She submitted a non-refoulement claim form on 22 December 2017 on the basis she would be killed by her father and brother in Indonesia as she gave birth to an illegitimate child with a Nepalese male while in Hong Kong.

5.By a Notice of Decision dated 29 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk^[3], BOR 3 risk^[4], BOR 2 risk^[5] and persecution risk^[6]. 

6.The applicant appealed against the Director’s decision to the Board and attended the hearing before the Board on 16 August 2018.  The Board did not accept there are any threats or meaningful risk that serious harm will occur to the applicant, and found that she simply wanted to stay in Hong Kong to care for her son.  It was admitted by the applicant that she would not counter problems with her family if she returns to Indonesia alone.  There was also no evidence produced nor finding by the Board that the applicant would face any risk of torture or persecution in Indonesia as she is of no interest to the state. Therefore, the Board dismissed her claim on 19 November 2018.

The judge’s decision

7.On 24 December 2018, the applicant applied for leave to apply for judicial review against the decision of the Board.  She did not supply any grounds in support of her application as she only attached the hearing bundle at the Board’s hearing and the Board’s decision to her supporting affirmation. As she did not request for an oral hearing, DHCJ Lung considered the application on paper. 

8.The judge held there is nothing to show that the Board had committed any error in applying the law or in coming to its conclusions.  Thus, the judge found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 16 June 2020.

Grounds of appeal

9.The applicant did not provide any grounds of appeal in her summons.  As for her supporting affirmation, she stated that she totally disagrees with the decisions of the authorities because she could not understand the English language or the court procedures.  In her written submissions, the applicant adopted what was stated in her supporting affirmation.

Analysis and disposition

10.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.

11.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 16 June 2020.  The applicant took out summons in the court below on 2 November 2020.  She was late for over 16 weeks and she has not provided a reasonable explanation for the substantial delay.

12.As the applicant’s delay is inexcusable, she must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.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.

14.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.

15.The applicant’s grounds raised in her submissions for the present summons were not raised before the court below.  These new grounds will not be entertained by the Court of Appeal as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below^[7]. In any event, the applicant has 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.

16.For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 16 June 2020 and dismiss the summons filed on 27 July 2021.

The Applicant, acting in person

[1] [2020] HKCFI 1204

[2] [2021] HKCFI 1954

[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 being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] 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.

[7] Re Qadir Sher [2018] HKCA 160 at §11