Cepi Kurniawan v. Torture Claims Appeal Board

CAMP 251/2023, [2024] HKCA 581

On Appeal From [2022] HKCFI 3113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 251 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 548 OF 2021)

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BETWEEN

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  dated 7 October 2022[1] refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 1 April 2021.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 27 August 2020 rejecting his non-refoulement claim.

2.On 2 June 2023, the Judge refused to extend time for the applicant to appeal against his decision of 7 October 2022.

Background

3.The applicant is a national of Indonesia born in 1992.  He had entered Hong Kong on the strength of his Indonesian passport as a visitor and was permitted to stay until 3 October 2019.  The applicant overstayed and was subsequently arrested by the police on 26 January 2020.  He lodged his non-refoulement claim by way of written representations on 27 January 2020 and 7 February 2020 on the basis that he would be harmed or killed by his creditor (Supardi)  due to his inability to repay a loan, if he was refouled to Indonesia.

4.The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 27 August 2020, the Director rejected the claim.

5.The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 28 October 2020, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 1 April 2021 and its corresponding Corrigendum dated 7 April 2021, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [8] of the Form CALL-1:

“ 8.  In its decision the Board accepted the Applicant’s claim of fear of harm from the loan shark over his loan but found that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Indonesia as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.”

The Judge’s decisions in the court below

6.On 19 April 2021, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision, without specifying any grounds in that form.  In the supporting affirmation, the applicant stated that he would like to apply for leave for judicial review and appeal the Director’s decision, because he was scared to return to his country, he wanted to stay in Hong Kong, he had borrowed money and that debt was increasing, he could not repay the loan, and the loan shark would kill him. The applicant further annexed the hearing bundle prepared for the hearing before the Board, the Director’s decision and a covering letter issued by the Board dated 1 April 2021.

7.The Judge considered the application on the basis of the documents alone as the applicant was absent at the oral hearing fixed on 12 July 2022.  On 7 October 2022, the Judge issued his decision to refuse to grant leave to apply for judicial review.  The reasons were set out in [10] to [15] of the Form CALL-1 as follows:

“ 10. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fettered its discretion or acted procedurally unfair, or how did it fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

11. 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.

12. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

13. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing before the Board he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board or that this ground is reasonably arguable either.

14. Furthermore, 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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Indonesia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.   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.”

8.More than 3 months after the expiry of the 14-day time limit to file an appeal prescribed in Order 53 rule 3(4)  of the Rules of the High Court (Cap.4A), the applicant filed a summons on 13 February 2023 together with a supporting affirmation to apply for extension of time to file his intended appeal against the Judge’s decision.  In his affirmation, the applicant stated that he was unrepresented with no means to instruct a private lawyer and that he requested the court to exercise its discretion to allow him to appeal out of time.   An oral hearing was held on 18 May 2023, where the applicant was present and was invited to make oral submissions.  On 2 June 2023, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any prospect of success in his intended appeal.

The renewed application before this Court

9.By summons filed on 13 July 2023, the applicant made an application for leave to appeal against the Judge’s order dated 7 October 2022 and to advance “a new sole ground of appeal”, without any elaboration. 

10.In his supporting affirmation, the applicant stated that he was unaware of the 14-day time limit, that he was unrepresented, that he did not receive any decision of the Judge at his residential address, and that he only knew about the result from his immigration officer.  He further stated that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his country.

11.The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 13 July 2023.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.The applicant was late for more than 3 months when he filed his first summons for extension of time on 13 February 2023.  As the delay was substantial, the court will not extend time unless there are real prospects of success in the intended appeal.

13.In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board had heard the applicant and assessed his evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim, because it found that the applicant’s fear of harm was a private monetary dispute without any state involvement, that state or police protection would be available to the applicant, and that internal relocation was a safe and viable option for him.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish or even identify any such public law grounds.

16.It is well established that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings: see Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10]. The Applicant was legally represented in the completion of his non-refoulement claim form and during the vetting process of the Director, which contained the same factual claims relied upon by the applicant in the subsequent processes. We do not find the non-availability of legal representation in the processes before the Board or the court to amount to any procedural unfairness.  Although the applicant submitted that he did not know the time limit for appeal, ignorance of the law is not a good reason for delay. 

17.The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  As for the applicant’s claim that he did not receive the Judge’s decision by post, it is noted that there is a discrepancy in that the applicant stated that his wife had informed him of the letter at the hearing before the Judge, while the applicant stated that his immigration officer informed him of the result in the supporting affirmation.  Nevertheless, the Judge had considered and rejected the applicant’s reason for delay at [5] of his decision dated 2 June 2023.  Furthermore, in relation to the applicant’s claim that the Judge had reached his decision unfairly without allowing him an opportunity to clarify his case and the situation in his country, it appears that the applicant had, in fact, failed to attend the hearing before the Judge on 12 July 2022.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

18.In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 13 July 2023 is accordingly dismissed.

The Applicant, unrepresented, acting in person