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

CAMP 71/2023, [2023] HKCA 719

On An Intended Appeal From [2022] HKCFI 1092 &

[2022] HKCFI 3787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 71 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 325 OF 2019)

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JUDGMENT

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

1.On 15 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 Bruno Chan (“the Judge”) dated 28 December 2022 refusing to grant her an extension of time to appeal against the Judge’s earlier order dated 14 April 2022 (“the Order”) refusing to grant her leave apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 22 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 April 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 was permitted to work in Hong Kong as a foreign domestic helper since 2007.  Her last employment contract was terminated on 3 February 2014.  On 4 February 2014, she was arrested by the police for the offences of theft and handling stolen goods, for which she was subsequently convicted and sentenced to prison for 5 months.  Upon her discharge from prison, she was referred to the Immigration Department for deportation.  She then raised a non-refoulement claim on the basis that if she returned to Indonesia, she would be harmed or killed by her creditor over her outstanding debts and/or by her stepmother, who was a sister of her creditor.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2022] HKCFI 1092).

5.By a Notice of Decision dated 19 April 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 22 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 found inconsistencies and contradiction in the Applicant’s evidence regarding her loan and her claimed fear of harm from her creditor or her stepmother that it doubted the credibility of her claim, that in any event it was a private monetary and/or domestic dispute between them 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 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 a decision dated “19 April 2017”.  A copy of the Board’s Decision was attached to her affirmation of the same date.  No ground of judicial review was given in the Form 86.  The Judge correctly treated the Applicant’s application as an application for leave to apply for judicial review of the Board’s Decision, instead of the Director’s Decision. 

THE JUDGE’S DECISION

8.On 14 April 2022, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[9] On 4 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just repeated her claim as before that she does not want to return to her home country as her life would still be in danger there but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality 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 for her intended challenge.

…

[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 20 July 2022, the Applicant applied by summons for an extension of time to appeal against the Order.  On 28 December 2022, the Judge refused the application, holding that there was no prospect of success in her intended appeal.

THIS APPLICATION

10.By a summons taken out on 15 February 2023, the Applicant applied for an extension of time to appeal against the Judge’s order of 28 December 2022.

11.In her written submissions dated 28 February 2023, the Applicant repeated the factual basis of her non-refoulement claim, and alleged that the Director and the Board made many mistakes, but the High Court did not agree with her arguments and did not find any mistake on the part of the Director and the Board.

DISCUSSION

12.Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

13.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.

14.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.

15.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)).

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 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.

17.The Applicant has failed to identify or show any error in the Judge’s decision of 14 April 2022, 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.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 15 February 2023 is dismissed.

The Applicant, acting in person

[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.