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

CAMP 16/2022

[2022] HKCA 671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 16 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2835 OF 2018)

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Before:  Hon Kwan VP and Cheung JA in Court

Date of Judgment:  20 May 2022

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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 5 October 2021, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.[1]

2.On 16 December 2021, DHCJ Lung dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show that she has any reasonable prospect of success in her intended appeal[2].

3.On 11 January 2022, the applicant filed the present summons with the Court of Appeal seeking to challenge the decision of the judge. 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 made by DHCJ Lung dated 5 October 2021.

4.The applicant is a national of Indonesia. She is 42 years old. She came to Hong Kong to work as a foreign domestic helper on 13 February 2014 and her employment was prematurely terminated. She was then arrested by the police for overstaying and sentenced to two weeks’ imprisonment, which was suspended for three years. On 22 October 2014, she lodged her non-refoulement claim on the basis that she would be harmed or killed by her husband due to her extramarital affairs and inability to repay a debt owed to him.

5.By a Notice of Decision dated 23 November 2017, the Director of Immigration (“Director”) rejected her claims on 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 4 October 2018. The Board found significant inconsistences between the accounts given at the hearing and to the Director, such as her employment as a domestic helper in Malaysia before arriving in Hong Kong. There is also various contradicting evidence given at the hearing and in light of this, the Board did not find the applicant’s claim of harm from her husband to be credible. Lastly, the Board observed that internal relocation was not unreasonable. Therefore, the Board dismissed the applicant’s appeal on 22 November 2018.

The judge’s decision

7.On 11 December 2018, the applicant applied for leave to apply for judicial review against the Board’s decision. She did not supply any grounds for seeking relief and simply enclosed the decision of the Board. As the applicant did not request for an oral hearing, DHCJ Lung considered the application on paper.

8.The judge found the applicant did not put forward any proper ground for her intended challenge of the Board’s decision. Thus, the judge observed there is no error of law or procedural unfairness in the Board’s decision. In conclusion, the judge found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 5 October 2021.

Grounds of appeal

9.The applicant did not provide any grounds of appeal in her summons and merely repeated what was stated in her summons in the Court below. As for her supporting affirmation, she again repeated what was stated in her supporting affirmation for her leave application for judicial review, namely that she would be killed by her husband if she returns to Indonesia. She simply annexed the decision of DHCJ Lung dated 16 December 2021 to her supporting affirmation before this court. She has not submitted any written submissions as at the date of this judgment.

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 5 October 2021. The applicant took out a summons in the court below on 20 October 2021. She was late for just one day. She has not provided any reasonable explanation for the delay.

12.As the applicant’s delay is very short, we will focus on the merits of her case in deciding whether to grant an extension of time.

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.In the present case, the applicant did not provide any grounds of appeal in her summons apart from repeating what was stated in the summons filed in the court below. Nor did she make any submission to this court. She 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 5 October 2021 and dismiss the summons filed on 11 January 2022.

The Applicant, acting in person