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

CAMP 163/2023, [2023] HKCA 895

On An Intended Appeal From [2022] HKCFI 2530 &

[2023] HKCFI 524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 163 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1022 OF 2019)

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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 19 April 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 17 August 2022 (“the Order”) refusing to grant her leave to 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 27 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 January 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 India. She last entered Hong Kong on 6 January 2014 to work as a foreign domestic helper. When her contract of employment was prematurely terminated on 8 July 2015, she did not leave Hong Kong but overstayed illegally. She surrendered herself to the authorities on 17 September 2015. On 15 January 2016, she raised a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her Hindu friends and other persons because of her conversion from Hinduism to Christianity, and/or the fact that she once damaged some properties in a Hindu temple, including a statue of a god. Details of the Applicant’s claim have been summarised by the Judge at §§6 to 10 of the CALL-1 Form.

5.By a Notice of Decision dated 9 January 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 27 March 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 §§11-12 of the CALL-1 Form:

“[11] Having studied the papers, the Board was of the view that the Applicant’s case appeared implausible and for that reason directed an oral hearing to be held. At the hearing, the Board informed the Applicant that there were issues relating to her general credibility which arose from the information she had provided in the NCF and the screening interview. It invited her to answer questions to be raised by the Board. The Applicant expressed that she understood what had been explained to her but elected not to testify. The Board further explained that her decision not to give evidence would probably lead to a negative assessment in relation to her general credibility. The Applicant again indicated that she understood and confirmed her election not to give evidence. The Board then informed her that it would determine her appeal/petition on the basis of the information which she had already provided. After due consideration, the Board held that as a result of her refusal to answer questions, it was not be able to attach any weight to her evidence. The Board found the core of her case to be implausible. Much of her evidence was hearsay. It held in paragraphs 40 to 43:

‘40. Since the [Applicant] elected not to give evidence, or answer questions, I am not persuaded on the balance of probability, that the [Applicant] was giving a truthful account of her experiences in India before she arrived in Hong Kong. In the circumstances, I am unable to attach any weight to the [Applicant’s] evidence in support of her application for non-refoulement protection.

41. On the totality of the evidence, I am not persuaded, on the balance of probability, that the events in India described by the [Applicant], which go to the core of her case, actually occurred.

42. Much of the [Applicant’s] evidence relates to facts which are not within her own knowledge and is based solely on what he was told by others. Such evidence amounts to hearsay. While hearsay evidence is not, of itself, inadmissible, the eight which can be attached to such evidence is greatly reduced. Hearsay cannot prove the truth of facts asserted by way of such evidence. Speculation can rarely, on its own, support any element of the [Applicant’s] case.

43. For the reasons set out above, the [Applicant] has failed to establish, even to the low standard applicable, that, if she is refouled to India, there is a real risk that she would suffer ill-treatment of any sort at the hands of Sita’s group, or at all.’

[12] Primarily for these reasons, the Board found there was nothing to show that the Applicant would face a real risk of being subjected to any of the proscribed risks of harm upon her return to India. It found she was not entitled to protection under any of the four applicable grounds under the USM and dismissed her appeal.”

7.On 15 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision and Board’s Decision. No ground of judicial review was given in the Form 86. In her supporting affirmation filed on the same date, she complained about the lack of language assistance and the fact that the Board’s Decision was written in English. She also complained about the Adjudicator’s failure to give reason(s) for his decision or discuss relevant country of origin information in his decision, and his adverse finding of credibility against her.

THE JUDGE’S DECISION

8.On 17 August 2022, the Judge refused to grant the Applicant leave to apply for judicial review. The Applicant’s various complaints were fully considered by the Judge at §§15-26 of the CALL-1 Form which it is not necessary to repeat in this judgment. The Judge concluded at §27 as follows:

“There is no merit in the Applicant’s grounds of application. In the absence of any arguable grounds of judicial review, the Court could only focus on error of law, procedural irrationality and irrationality in the Decision. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board found the Applicant not credible on the crucial issues of her risk of harm upon her return to India. Basically, she failed to discharge her burden of proving her fears and risks. It was on that basis that the Board found she had failed to prove the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review was refused.”

9.On 29 November 2022, the Applicant applied by summons for an extension of time to appeal against the Order. On 27 February 2023, 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 19 April 2023, the Applicant applied for an extension of time to appeal against the Order.

11.In her written submissions dated 2 May 2023, the Applicant complains that the Adjudicator failed to make inquiry with the authorities in her home country before finalising his decision, and failed to give reasons for his decision. She also repeats her allegation that if she goes back to India, her life will be in great peril. In a document attached to her written submissions, the Applicant sets out some general principles of law relating to non-refoulement claims, but fails to explain how those principles are applicable to her case.

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 Adjudicator dismissed the Applicant’s appeal essentially because of his adverse assessment of the Applicant’s credibility. This is a matter primarily within the province of the Adjudicator. The Adjudicator was under no duty to make any inquiry with the authorities in India before making his decision. The Applicant’s complaint that the Adjudicator failed to give reasons for his decision has plainly no substance, and was fully considered by the Judge. The Applicant has failed to identify or show any error in the Judge’s decision of 17 August 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 19 April 2023 is dismissed.

The Applicant, acting in person