Fitria Aidul Fitri v. Torture Claims Appeal Board and Another

CAMP 361/2022

[2022] HKCA 1827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 361 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 323 OF 2019)

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Before:  Hon G Lam and Chow JJA in Court

Date of Written Submissions:  5 October 2022

Date of Judgment:  19 December 2022

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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 21 September 2022, the Applicant took out a summons to apply for an extension time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 13 April 2022 refusing to grant her leave to apply for judicial review (“the Order”).

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 10 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 July 2018 rejecting the Applicant’s non-refoulement claim.

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 4 July 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 July 2016 or within 14 days of its termination, whichever was the earlier. Her employment was prematurely terminated on 5 July 2014. She did not depart after the expiry of her limit of stay, and overstayed instead. She was arrested by police on 16 August 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim alleging that, if she returned to Indonesia, she would be harmed or killed by her parents’ creditor over their outstanding debts. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2022] HKCFI 1065).

5.By a Notice of Decision dated 24 July 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board. On 10 January 2019, 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 accepted the Applicant’s claim of threats made by the loan shark against her parents over their outstanding debts, but doubted that the loan shark would have any adverse interest in the Applicant let alone make threats against her on the phone from Indonesia and in particular the assertion that her father had been killed but no report was ever made to the police over such a serious matter, and found in any event that it was a private monetary dispute between her parents and their creditor without any official involvement that state/police protection would be available to the Applicant 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 by her parents’ creditor that her claim for non-refoulement protection failed on all applicable grounds.”

7.On 4 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision. Since the Director’s Decision had been superseded by the Board’s Decision, the Judge treated her application as an application for leave to apply for judicial review of the Board’s Decision. No ground for judicial review was given by the Applicant in either the Form 86 or her supporting affirmation filed on the same date.

THE JUDGE’S DECISION

8.On 13 April 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[10] 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.

[11] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim 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.

[12] 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 6 September 2022, the Judge refused the Applicant’s application by summons dated 4 May 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2658).

THIS APPLICATION

10.By a summons taken out on 21 September 2022, the Applicant applied to the Court of Appeal for an extension time to appeal against the Order. In her supporting affirmation filed on the same date, the Applicant merely stated the following:

“Affirmation for extension of time to appeal as High Court did not extend time. The High Court has two decision I do not agree with them”.

11.In her written submissions dated 5 October 2022, the Applicant repeated that she faced life threat in her motherland, and alleged that her enemy was very powerful, and the police would help her enemy because her enemy paid them “big amount”.

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 Court of Appeal’s general approach in dealing with appeals in non-refoulement cases 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, at §14(6)).

15.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.

16.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 13 April 2022, and has failed to raise any viable ground of appeal against the Order.

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

DISPOSITION

18.The application for extension of time to appeal is refused, and the Applicant’s summons of 21 September 2022 is dismissed.

The Applicant, acting in person