Evi v. Torture Claims Appeal Board

CAMP 214/2022

[2022] HKCA 1301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 214 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2315 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 27 June 2022, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 24 November 2021 refusing to grant her leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)  dated 2 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 16 November 2017.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of Indonesia.  She last arrived in Hong Kong on 9 June 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 16 July 2017 or within 14 days of its early termination.  Her employment contract was prematurely terminated on 9 July 2016.  She did not depart after the expiration of her limit of stay, and overstayed.  On 3 August 2016, she surrendered to the Immigration Department.  On 29 November 2016, she raised a non-refoulement claim, alleging that, if refouled, she would be harmed or killed by her neighbour for turning down his marriage proposal.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2021] HKCFI 3545).

5.By a Notice of Decision dated 16 November 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.The Applicant appealed the Director’s decision to the Board.  On 2 October 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence of her claimed fear of harm from Supri that it did not find her to be a truthful witness and doubted the credibility of her claim, and that in any event even if her claimed fear is true that her dispute with Supri was a private personal matter without any state or official involvement that state/police protection would be available to her upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located and with help from the Indonesian government and NGOs to assist her if necessary in the care of her daughter while adapting to her new environment that her claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

7.On 23 October 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

8.On 24 November 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[9] On 23 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for her intended challenge:

(1)  Procedural unfairness in that the Board had unlawfully fettered its discretion in refusing her appeal on the grounds that they did not meet the requirement;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3)  Procedurally unfairness in that the Board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4)  Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board significantly relied on the source of news that is not officially recognized or is simply hearsay or outdated which resulted in its making groundless speculations that it would be safe for the Applicant to return to her country of origin; and

(6)  Procedural unfairness in that she was given the appeal bundle only six days before her appeal hearing before the Board with the majority of the documents in English with which she had limited skill and without financial resources to seek help from interpreter thereby giving her insufficient time to prepare for the hearing.

[10] The Applicant however failed to attend the hearing of her application to make representations as to how these proposed grounds would be reasonably arguable for her intended challenge, as they are mostly just some broad and vague assertions of hers containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion in refusing her appeal, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or that the Board had acted in a procedurally unfair or unreasonable manner. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

[11] 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 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.

[12] The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby gave her insufficient time to prepare for her appeal.

[13] Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the covering letter that accompanied the hearing bundle to show the actual postmark, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS for her claim before the Director, whilst her NCF was completed on her own instructions with legal assistance, and that during her oral hearing before the Board she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. In the premises I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board, nor do I find this ground reasonably arguable for her intended challenge either.

[14] In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 66 – 80 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

[15] The fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if true 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.

[16]   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.”

9.On 14 June 2022, the Judge refused the Applicant’s application by summons dated 12 January 2022 for an extension of time to appeal against the Order (see [2022] HKCFI 1696).

THIS APPLICATION

10.By a summons taken out on 27 June 2022, the Applicant renewed her application for extension of time to appeal against the Order.

11.In her 3-page written submissions dated 11 July 2022, the Applicant stated that her enemy was powerful and she came to Hong Kong for the safety of her life.  She also said that she did not get any “letter” from the court and so she failed to appeal within time.

DISCUSSION

12.In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.The Applicant’s delay of about 5 weeks to lodge her appeal is substantial.  Although the Applicant claimed that she did not receive the court’s decision, the court record showed that the decision was sent to her last reported address on 24 November 2021 and it had not been returned as undelivered post.  We do not consider that the Applicant has provided any valid explanation for the delay.

15.As regards the merits of the Applicant’s intended appeal, the court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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 judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

16.Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 24 November 2021, and has failed to raise any viable ground of appeal against the Order.

18.There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

19.The Applicant’s application for extension of time to appeal is refused, and her summons of 27 June 2022 is dismissed.

The Applicant, acting in person