Anis Puji Handayani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 39/2023, [2023] HKCA 640

On An Intended Appeal From [2022] HKCFI 3266 &

[2022] HKCFI 3586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 39 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2509 OF 2018)

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JUDGMENT

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

1.On 1 February 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 25 October 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 2 November 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 December 2017 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 arrived in Hong Kong as a foreign domestic helper.  Her employment contract was terminated prematurely in 2013.  On 8 May 2014, she was convicted of the offence of theft and sentenced to 9 months’ imprisonment.  On 5 June 2014, she lodged a non-refoulement claim alleging that, if refouled, she would be harmed or killed by her abusive husband.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 3266).

5.By a Notice of Decision dated 27 December 2017, 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 2 November 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 §9 of the CALL-1 Form, as follows:

“Having considered the applicant’s evidence, the Board made the following findings. First of all, the Board highlighted matters that affected the applicant’s credibility [30]. It found that several material aspects in the applicant’s claim were inherently inconsistent. Secondly, in reviewing the country of origin information, the Board concluded that state protection was available to the victims of domestic violence [36]-[50]. Thirdly, it was pertinent to note that the applicant’s husband was a non-state actor and there was no evidence of state involvement [52]-[58]. In addition, the alleged injuries inflicted by the husband was with bare hands and the applicant sustained no injuries that attained a minimum level of severity [63]-[64]. Meanwhile, the husband’s conducts showed no real intention to cause serious harm or even kill her [67]. Besides, the applicant’s last contact with her husband was in around 2002 to 2005 and there was no evidence of further contact. Thus, the Board found that the alleged risk of harm from her husband was speculative [68]-[69].”

7.On 8 November 2018, 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 25 October 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] There is no valid ground to challenge the Board’s Decision.

[17] 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.

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

9.On 14 November 2022, the Applicant applied by summons for an extension of time to appeal against the Order.  On 15 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 3586).

THIS APPLICATION

10.By a summons taken out on 1 February 2023, the Applicant made a further application to the Court of Appeal for an extension of time to appeal against the Order.  In the summons, the Applicant said that she did not get “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.In her written submissions dated 14 February 2023, the Applicant says that she came to Hong Kong for her “life safety”, and makes some general allegations about the conditions in her country.

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 25 October 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 1 February 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.