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

CAMP 307/2023, [2023] HKCA 1282

On An Intended Appeal From [2023] HKCFI 1653 &

[2023] HKCFI 2146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 307 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 674 OF 2023)

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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 12 September 2023, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 31 August 2023 refusing to grant her an extension of time to appeal against an earlier order of the Judge dated 30 June 2023 (“the Order”) refusing 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 21 February 2023, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 September 2022 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 pursuant to 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 as a foreign domestic helper on 15 December 2019. Her permission to stay was later extended to 14 March 2023 or two weeks after the termination of her employment contract, whichever was the earlier. On 7 February 2022, her employment contract was prematurely terminated. She did not depart and overstayed instead. She was subsequently arrested on 13 July 2022 by the police for overstaying. On 17 July 2022, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor called Mimin. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.

5.By a Notice of Decision dated 16 September 2022, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board. On 21 February 2023, 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 §§8-10 of the CALL-1 Form:

“[8] The Board considered the applicant’s claim, the oral testimonies at the hearing, and the closing submissions from the parties, as well as the country of origin information (‘COI’). Having considered all the information, the Board made the following findings. The Board considered the applicant to be a credible witness and the significant parts of her claims to be true [71]. Nevertheless, the Board did not accept that the applicant was in need of non-refoulement protection [71]. Despite it accepted the existence of the loan [73] and the applicant’s outstanding payments [74], as well as threats from Mimin [76], it found that the threats from Mimin was only an effort to recover the loan and that there was simply no evidence that the threats from Mimin reached a requisite severity of harm [77]. Overall, the Board found that the conducts of Mimin did not show any intention to cause harm or even kill the applicant or her family members [78].

[9] Meanwhile, the Board found that the applicant’s failure to seek alternative solution to settle the loan undermined her credibility [79]. Also, her delay in seeking non-refoulement protection was inconsistent with someone who genuinely had a fear of harm [80]. As a result, the Board was not satisfied that the applicant faced a real or substantial risk of harm from Mimin.

[10] In any event, state protection and internal relocation were both viable alternatives for the applicant [84]-[92].”

7.On 9 May 2023, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review of the Board’s Decision was given in the Form 86 or in the Applicant’s supporting affirmation of the same date.

THE JUDGE’S DECISION

8.On 30 June 2023 2021, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[17] The Board had considered the applicant’s evidence and found that she failed to establish that she has the real risk of being harmed or even killed if she returns to Indonesia.

[18] The applicant has raised no valid ground to challenge the Board’s Decision.

[19] 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.

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

9.On 18 July 2023, the Applicant applied by summons for an extension of time to appeal against the Order. On 31 August 2023, the Judge refused the Applicant’s application, holding that the Applicant had not been able to raise any reasons to challenge the Board’s Decision, and there was no realistic prospect of success in her intended appeal.

THIS APPLICATION

10.By a summons taken out on 12 September 2023 in the Court of Appeal, the Applicant applied for leave to appeal against the Judge’s order of 31 August 2023.

11.In her written submissions dated 21 September 2020, the Applicant stated that she was late in submitting her notice of appeal because she did not receive the Judge’s decision dated 30 June 2023 in time, and she did not have “any idea about appeal”. She stated that the risk to her life in her home country was overwhelming, her enemies were still looking for her, and if she returned to her country, she would face death. She also complained that the Board and the Director had failed to take into account and/or give proper weight to relevant considerations and materials, and hence their decisions were illegal.

DISCUSSION

12.Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we will 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. The Applicant’s complaints against the decisions of the Director and the Board are general allegations without particulars. No error of law or procedural unfairness or irrationality in the decisions of the Director and Board is shown in the present case.

17.The Applicant has failed to identify any error in the Judge’s decision of 30 June 2023, or 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 12 September 2023 is dismissed.

The Applicant, acting in person