SITI NURHAYATI v. TORTURE CLAIMS APPEAL BOARD

CAMP 25 /2024, [2024] HKCA 1117

On appeal from [2023] HKCFI 2869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 25 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1028 OF 2023)

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_J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 9 November 2023, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim^[1].

2.  On 29 November 2023, the applicant filed a summons at the Court of First Instance to seek extension of time to appeal against that decision.  The summons was dismissed by the judge on 25 January 2024^[2].

3.  On 5 February 2024, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.  The Registrar of Civil Appeals directed her to lodge written submissions by 19 February 2024.  To date, the applicant has not lodged any written submissions.

4.  The applicant is a national of Indonesia.  She last arrived in Hong Kong on 25 February 2018 with permission to work as a foreign domestic helper.  She was arrested by the Immigration Department on 3 August 2021 for undertaking unapproved employment in breach of her conditions of stay. She lodged her non-refoulement claim on 23 November 2021.  Her claim was made on the basis that she will be harmed or killed by her brother if she returns to Indonesia because she gave birth out of wedlock. 

The decisions of the Director and the Board

5.  By a Notice of Decision dated 26 April 2022, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6]. 

6.  The applicant appealed against the Director’s decision to the Board.  The appeal was heard before the Board on 13 February 2023.  The Board found that the applicant’s problem a private matter and the element of official capacity cannot be established.  The Board further found that effective state protection and reasonable internal relocation options are available to the applicant in Indonesia.  The Board concluded that the applicant was unable to establish a real risk pertinent to any of the applicable grounds and dismissed the appeal on 9 June 2023.

The intended judicial review

7.  On 26 June 2023, the applicant filed a Form 86 and an affirmation in HCAL 1028/2023 to seek leave to bring judicial review against the Board’s decision.  Her grounds may be summarised as follows:

(1)  The Board did not address the issues of her claim properly and instead just came up with the assessment on more or less of a ‘template’ basis;

(2)  The Board wrongly assessed that state protection would be available to the applicant without recognising the fact that in Indonesia having children out of wedlock is against  Islamic law;

(3)  The Board wrongly exercised its case management power by placing undue weight on the report of availability of state protection to the applicant; and

(4)  It was procedurally unfair to the applicant that she was provided with a hearing bundle with the majority of documents in English which she cannot read or understand without translation or legal representation for her appeal before the Board.

The judge’s decision

8.  DHCJ Bruno Chan dealt with the leave application on paper.  The judge held that the applicant’s complaint about the hearing bundle as well as the lack of language and legal assistance in the appeal is without merit.  The judge noted that most of the documents in the hearing bundle had been made available to the applicant previously when she still had legal representation from the Duty Lawyer Service. The applicant also did not raise such issue or request the Board for further time or assistance in this respect.  The applicant was also able to present her case to the Board with the assistance of an Indonesia interpreter.

9.  The judge further found that the rest of the applicant’s grounds are not reasonably arguable, as they are just some vague and bare assertions without necessary particulars or elaboration.  In addition, the applicant stated in her affirmation filed on 25 August 2023 that she wants to withdraw her leave application as she does not have any fear of being tortured or risk of life anymore and the problems have been solved.  As the judge was not satisfied there is any prospect of success in the intended judicial review and in view of the applicant’s said affirmation, he dismissed the leave application on 9 November 2023.

Grounds of intended appeal

10.  In the present application, the applicant only stated that she does not agree with the judgment without putting forward any specific grounds of appeal.

Analysis and Disposition  

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 9 November 2023 and the applicant was late by 6 days when she took out the summons at the court below on 29 November 2023.  She explained that she did not get the High Court judgment. 

13.  Even if the court is minded to accept her explanation in light of the short delay, the court would still assess whether the applicant can show there is reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[7].

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  In the present application, the applicant failed to put forward any reasonably arguable grounds to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  Moreover, the applicant had confirmed in her previous affirmation that she does not have any risk of life or fear of being tortured anymore as the problems have been solved.

16.  For the above reasons, there is no prospect of success in the intended appeal.  We refuse to grant extension of time to appeal against the judge’s decision of 9 November 2023.  We therefore dismiss the summons filed on 5 February 2024.