Rina Matopani Bt Toha Anwari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 17/2023, [2023] HKCA 637

On An Intended Appeal From [2022] HKCFI 2664 &

[2022] HKCFI 3665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 17 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1071 OF 2019)

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JUDGMENT

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

1.On 16 January 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 1 September 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 16 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 February 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 entered Hong Kong on 14 February 2015 to work as a foreign domestic helper and was permitted to stay in Hong Kong until 24 December 2016 or 2 weeks after termination of her employment contract, whichever was the earlier.  Her employment contract was terminated on 3 December 2016.  Her application for extension of stay was refused, and she was required to leave Hong Kong on or before 30 December 2016.  She overstayed, and surrendered herself to the Immigration Department on 7 April 2017.  On 20 June 2017, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by a loan shark.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 2664).

5.By a Notice of Decision dated 26 February 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 16 April 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 §9 of the CALL-1 Form, as follows:

“After reminding itself of the relevant legal principles, the Board considered the applicant’s claim. It highlighted matters that it wished to, but was unable to, clarify with the applicant [48]-[54]. It also examined the country of origin information and found that state protection and internal relocation to Bali or Jakarta were both available to the applicant [55]-[57]. It also noted that the material aspects of the applicant’s claim, as stated in her non-refoulement claim and during the interview before the Director, were general and lacked specifics [58]-[64]. It thus concluded that it would not accept the applicant’s claim as credible [65].”

7.On 23 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of judicial review was given in the Form 86, or in the Applicant’s supporting affirmation filed on the same date.

THE JUDGE’S DECISION

8.On 1 September 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:

“[16] I have noted that the applicant had refused to provide further information to the Board upon request despite the Board’s warnings above. She cannot complain that the Board did not accept her evidence.

…

[18] The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of her claim: section 37ZA (1)(a). As the law imposes an obligation on her to make prompt and full disclosure of all material facts in support of the claim, her refusal to do so is in contravention of the statutory provision and she must bear the consequences. She had been told the consequence of the Board not believing her evidence if she refused to answer the questions put by the Board to her. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

[19] Where the applicant refused to give evidence to verify her evidence, her evidence is no better than the hearsay evidence, which the Board was entitled to give very little or even no weight to it. The Board is therefore quite entitled to come to its conclusion that her evidence is therefore not credible.

[20] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[21] The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

9.On 31 October 2022, the Applicant applied by summons for an extension of time to appeal against the Order.  On 20 December 2022, the Judge refused the application, holding that the Applicant had failed to show that she had any realistic prospect of success in her intended appeal ([2022] HKCFI 3665).

THIS APPLICATION

10.By a summons taken out on 16 January 2023, the Applicant made a further application to the Court of Appeal for an extension of time to appeal against the Order.  In the said summons, the Applicant said that she did not receive “the High Court letter on time”, and in her supporting affirmation filed on the same date, she said that she did not agree with the decision of the court.

11.The Applicant has failed to lodge written submissions in support of the application, contrary to the directions given by the Registrar of Civil Appeals on 16 January 2023.

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 is an 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 identify or show any error in the Judge’s decision of 1 September 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.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

18.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 16 January 2023 is dismissed.

[1]This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] 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.

[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.