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

CAMP 518/2022, [2023] HKCA 522

On appeal from [2022] HKCFI 3138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 518 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1079 OF 2019)

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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 11 October 2022, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1].

2.On 27 October 2022, the applicant filed a summons for leave to appeal out of time against that decision at the Court of First Instance. The applicant’s summons was dismissed by the judge on 1 December 2022[2].

3.On 6 December 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4.The applicant is a national of India. She entered Hong Kong as a foreign domestic helper on 23 October 2013. She did not leave Hong Kong after her employment contract ended and the extended period of stay has expired. She surrendered to the Immigration Department on 3 March 2016. On 24 June 2016, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her boyfriend.

The decisions of the Director and the Board

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

6.The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board with her legal representative on 14 January 2019. The Board found that the applicant’s credibility is poor and her claim implausible because of the discrepancies in her claim and the fact that her boyfriend had not visited the applicant’s family since late 2007. The Board further considered that the alleged action of the boyfriend did not involve any public authorities and were not done with the consent or acquiescence of a public official. The Board also found that reasonable state protection and internal relocation alternatives are available to the applicant in India. The Board decided that the applicant does not face a real risk under the applicable grounds and dismissed her appeal on 4 April 2019.

The intended judicial review

7.On 23 April 2019, the applicant filed a Form 86 and an affirmation in HCAL 1079/2019 to seek leave to bring judicial review concerning her non-refoulement claim.  She put forward the following grounds for her intended challenge:

(1)  the Director erred in failing to accept her attendance certificate and failing to grant her a further screening interview;

(2)  the Board did not address the above issue in its determination;

(3)  the Board based its determination on a lot of assumptions without clarifying with the applicant at the hearing;

(4)  the Board had not taken into account the Indian authority is corrupt as shown in the country of origin information;

(5)  the Board failed to make a thorough and unbiased determination of her claim.

The judge’s decision

8.DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge directed that the Form 86 be amended to the effect that the Board is the proposed respondent and the Director is the interested party.

9.The judge considered that the Director was entitled to assess the evidence before him and even if the Director was wrong, the error had been rectified by the hearing before the Board which was conducted by way of re-hearing. The judge also found it is legitimate for the Board to draw inferences from other tangible evidence and the Board’s conclusions on the available evidence are not unreasonable. The judge concluded there is no error of law or procedural unfairness in the Board’s decision. As there is no realistic prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 11 October 2022.

Grounds of intended appeal

10.The applicant stated her grounds of appeal in the written submissions which may be summarized as follows:

(1)  Her life is under threat in her motherland. Her enemy is very powerful, influential and rich. She cannot fight with her enemy. The police and the authority help her enemy because her enemy paid them money;

(2)  There were many errors in the processing of her non-refoulement claim.

Analysis and disposition

11.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.

12.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 order was made on 11 October 2022 and the applicant was late by 2 days when she took out the summons for leave to appeal out of time at the court below on 27 October 2022. She explained that she was unrepresented and has no means to instruct a private lawyer.

13.Even if the court is minded to accept her explanation in view of the short delay, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

14.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.The applicant’s grounds of appeal are just bare assertions without evidence in support. In particular, she failed to identify any specific errors in the processing of her claim and failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision.

16.We do not think there is any prospect of success in the intended appeal. We therefore refuse to grant extension of time for the applicant to appeal against the judge’s decision of 11 October 2022 and dismiss the summons filed on 6 December 2022.

The Applicant, acting in person