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

CACV 152/2023, [2023] HKCA 1233

On Appeal from [2023] HKCFI 1285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 152 OF 2023

(ON APPEAL FROM HCAL NO 1247 OF 2019)

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JUDGMENT

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

1.This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 15 May 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 21 March 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 1 August 2016 and 4 October 2017.

BACKGROUND

2.The Applicant is a national of Indonesia.  She last arrived in Hong Kong on 10 August 2007 to work as a foreign domestic helper with permission to remain in Hong Kong until the expiration of her employment contract on 10 August 2009 or within 14 days of its termination, whichever was the earlier. Her employment contract was prematurely terminated on 12 December 2008.  She did not depart and overstayed in Hong Kong illegally.  She was arrested by the police almost 6 years later on 18 August 2014.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia, she would be harmed or killed by a fellow villager called Emi over a monetary dispute between them.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.

3.By a Notice of Decision dated 1 August 2016 and a Notice of Further Decision dated 4 October 2017 (collectively “the Director’s Decisions”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s Decisions to the Board.  On 21 March 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decisions (“the Board’s Decision”).  The Board’s reasons for its decision have been summarised by the Judge at §9 of the CALL-1 Form, as follows:

“In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence on key aspects of her claim that it doubted the credibility of her claim of fear of harm from Emi for failing to return to Indonesia and for overstaying in Hong Kong, which was further undermined by her failure to raise her claim when she overstayed until almost 6 years later and only after her arrest by police, while her claim of fear of being arrested and prosecuted by the police over some false charges made by Emi against her is unsupported by any reliable evidence and the fact that she had been able to go in and out of the country without any difficulty, and that even if her alleged claim of fear from Emi is true that it was a private monetary dispute between the two of them without any official involvement that state or 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 part of the country away from her home district without any risk of being located by Emi that her claim for non-refoulement protection failed on all the applicable grounds.”

THE JUDGE’S DECISION

5.On 9 May 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86, or in her supporting affirmation filed on the same date.  Pausing here, we note that in the Applicant’s affirmation, she stated that she was applying for leave to apply for judicial review of the Director’s Decision dated 4 October 2017 as well as the Board’s Decision.  However, since the Director’s Decisions had been overtaken by the Board’s Decision, they were not reviewable, and the Judge was correct to focus on the Board’s Decision as being the subject matter of the application.

6.On 15 May 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[12] As the last day of the 3 month-period for her to file her Form 86 fell on 21 June 2018, the Applicant was therefore more than 10 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

[13] In the Applicant’s case, a delay of more than 10 months must be considered as very substantial and inordinate, for which she did not provide any explanation in either her Form or her affirmation, and as the record show that the Board’s decision was sent on the same day to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

[14] As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forward any proper ground for her intended challenge. 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 merits in her intended application either.

[15] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

[16] In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in her claim if true 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.”

THIS APPEAL

7.In her Notice of Appeal dated 18 May 2023, the Applicant stated the following:

“I am disagree with the decision maker authorities. The Director of Immigration and the decision made by the Torture Claim Appeal Board. I do not think my case determined fairly.” [sic]

8.In her 3-page written submissions dated 10 October 2023, the Applicant stated that she disagreed with the decisions of the Director and the Board, and repeated her allegation that she believed her case had not been determined fairly.  She also complained about not being provided with legal or language assistance, and that she did not fully understand how her case was determined.

9.The Applicant did not appear at the hearing of the appeal.

DISCUSSION

10.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’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

11.Further, the assessment of evidence, COI, 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 are errors 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.

12.The Applicant did not put forward any ground of judicial review in the Form 86 or her supporting affirmation.  She is not entitled to raise new grounds in support of her application for leave to apply for judicial review such as the alleged lack of legal or language assistance, or rely on them as grounds of appeal against the Judge’s decision.  In any event, these complaints have no substance.  The Applicant had legal and language assistance in relation to the assessment of her non-refoulement claim by the Director, and language assistance at the hearing of her appeal before the Board.  It is well established that a non-refoulement claimant is not entitled to legal and/or language assistance at all stages of the non-refoulement claim process.  The Applicant’s belief that her case was not determined fairly is a bare assertion without particulars.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review.  We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

13.The Applicant’s appeal against the Order has no merit and is dismissed.

The Applicant, acting in person, was absent at the hearing

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

[2] 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.

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

[4] 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.