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

CAMP 77/2025, [2025] HKCA 633

On An Intended Appeal From [2024] HKCFI 2082 &

[2025] HKCFI 561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 77 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 980 OF 2024)

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JUDGMENT

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

1.On 14 April 2025, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 29 August 2024 (“the Order”) refusing to grant the Applicant 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 16 May 2024, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 January 2024 rejecting the Applicant’s non-refoulement claim.

3.Having considered the documents filed herein, 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 last entered Hong Kong on 29 June 2018 to work as a foreign domestic helper.  Her employment contract was terminated prematurely on 30 December 2018.  She had overstayed since 14 January 2019.  On 30 September 2023, she was arrested by the police.  On 4 October 2023, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by a moneylender (Evan Simatupang) for being unable to repay a loan.  Details of the Applicant’s claim have been summarised by the Judge at §§4 and 5 of the CALL-1 Form ([2024] HKCFI 2082).

5.By a Notice of Decision dated 17 January 2024 (“the Director’s Decision”), the Director rejected the Applicant’s non-refoulement claim with reference to all applicable risks: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

6.The Applicant appealed the Director’s Decision to the Board.  On 16 May 2024, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“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:

“Having considered the [Applicant’s] evidence [42]-[72], the Board came to the conclusion that there is no evidence to show that the [Applicant] will have any real risk of harm if she returns to Indonesia. State protection will be available to her and internal relocation is viable. [141]-[155].”

7.On 21 June 2024, 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.  In her supporting affidavit of the same date, she asked to be allowed to stay in Hong Kong because her life would be in danger in Indonesia.

THE JUDGE’S DECISION

8.On 29 August 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[13] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[14] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

…

[16] For the reasons given above, the Board found that she does not have any real risk of harm if she returns to Indonesia, which is obvious from the [Applicant’s] facts given to the Director and the Board.

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

[18] The [Applicant] fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

9.On 23 January 2025, the Applicant applied by summons for an extension of time to appeal against the Order.  By then, she was over four months late to lodge her appeal.  On 6 March 2025, the Judge refused the Applicant’s application, holding that she had failed to provide any explanation for her delay or raise any valid ground to challenge the Board’s Decision, and there was no realistic prospect of success in her intended appeal ([2025] HKCFI 561).

THIS APPLICATION

10.By a summons taken out on 14 April 2025, the Applicant applied to the Court of Appeal for leave to appeal out of time against the Order, and “to advance a new sole ground of appeal”, without identifying what that ground might be.  In her supporting affirmation of the same date, the Applicant explained that, being an unrepresented litigant, she was unaware of the 14-day time limit for appeal, and also that she never received the decision made by the Judge at her residential address.  She complained that the Judge reached the decision unfairly in that she was not given an opportunity to clarify her case and situation in her home country.

11.In her written submissions belatedly lodged on 2 May 2025, the Applicant made some generic submissions on general principles of law relating to non-refoulement claims, but failed to explain how those principles were relevant or 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.In the present case, the Applicant’s delay of over four months is substantial.  Her explanations that (i) she was unrepresented and was unaware of the time limit for appeal, and/or (ii) she did not receive the Judge’s decision, are not valid or good explanations for the delay.  As pointed out by the Judge, his decision of 29 August 2024 was sent to the Applicant’s last reported address (which is the same as that stated in the present application) on the same date without being returned through the undelivered post (see §4 of the Judge’s decision of 6 March 2025).  The inference is that the Applicant received the decision in the ordinary course of the post shortly after 29 August 2024.

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 claims 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 was 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 are 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 point to or substantiate any alleged error of the Judge in his decision of 29 August 2024, and has failed to raise any viable ground of appeal against the Order.  The complaint that she was not given an opportunity to clarify her case and situation in her home country is without substance.  She raised no substantial ground of judicial review in the Form 86 or in her affidavit in support of the leave application, and did not request for an oral hearing of the leave application.  The Judge was entitled to deal with the application on paper pursuant to Order 53, Rule 3(3) of the Rules of the High Court.  

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 Applicant’s summons taken out on 14 April 2025 is dismissed.