SUWARSIH v. TORTURE CLAIMS APPEAL BOARD

CAMP 213/2023, [2023] HKCA 1091

On Appeal From [2021] HKCFI 3634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 213 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1485 OF 2021)

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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 2 December 2021[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 (“Board”) dated 6 October 2021 which dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 14 July 2021 rejecting her non-refoulement claim.

2.  On 2 June 2023, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is an Indonesian national, born in 1973. She last arrived in Hong Kong on 27 April 2019 to be employed as a foreign domestic helper. Her permission to stay was subsequently extended until 24 November 2020 but she did not depart thereafter. On 14 March 2021, the applicant was arrested by the police and on 21 April 2021, she made a non-refoulement claim on the basis that she would be harmed or killed by loan sharks due to an outstanding debt incurred by her ex-husband.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6] By a notice of decision dated 14 July 2021, 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 8 September 2021, at which the applicant gave evidence and answered questions from the Board. The Board found the applicant’s evidence to be fanciful and incredible due to various inconsistencies. First, the applicant admitted that she was only a witness of the loan agreement between her ex-husband and the loan sharks, and not a guarantor as she previously insisted. Secondly, the applicant disclosed that her reason for remaining in Hong Kong was financial in nature, namely that she needed to earn money for the upbringing of her children. The Board also considered that due to the passage of time (over 20 years), it was unlikely the loan sharks would still be looking for her for repayment of the money borrowed by her husband so long ago.

6.  The Board went further and considered that even accepting the applicant’s evidence, in light of the fact that she had never received any physical harm from the loan sharks, the risk of torture was unsubstantiated. Nor was she able to establish the risk of ill-treatment under BOR 2 and 3 risks. As to persecution risk, the Board found the applicant’s claim did not fall within the specified Convention reasons. In any event, the Board held that internal relocation, particularly to one of the largest cities in Indonesia, was an option open to the applicant. For these reasons, the Board did not find that the applicant faced any real applicable risks if refouled to Indonesia. Accordingly, in its decision dated 6 October 2021, the Board concluded that the applicant’s claim failed in relation to all applicable grounds, dismissed her appeal and affirmed the Director’s decision.

The Judge’s decisions in the court below

7.  On 25 October 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. She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing. On 2 December 2021, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [10] to [14] of the Form CALL-1 as follows:

“ 10. 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.

11. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 33 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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.

13. 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.

14. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

9.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A). Over 14 months later, she filed a summons on 8 March 2023 with a supporting affirmation to apply to the Judge for an extension of time to appeal against his decision. The applicant voiced her dissatisfaction with the court’s decision and stated that she did not get the letter from the court.

10.  The Judge listed the application for extension of time for hearing on 18 May 2023, but the applicant failed to attend. In his written decision issued on 2 June 2023[7] at [5], the Judge gave the following reason for rejecting the applicant’s contention that she did not receive documents from the court:

“ 5. The court record shows that the decision was sent on the same day of 2 December 2021 to Castle Peak Bay Immigration Centre but was returned through undelivered post, and upon subsequent enquiry with the Immigration Department that the decision was re-sent on 9 December 2021 to her new address without being returned on this occasion. As such and in the absence of any evidence to corroborate her barest of assertion, I am not satisfied that the applicant has provided any good or valid reason for her such serious delay.”

11.  The Judge further decided to refuse to extend time on the ground that there was no prospect of success in the intended appeal.

The renewed application before this Court

12.  By summons filed in this court on 5 June 2023, the applicant sought to challenge the Judge’s decision(s). We shall treat it as an application for extension of time to appeal against the Judge’s decision dated 2 December 2021. In the summons the applicant said the Judge did not give her justice. The accompanying affirmation simply repeated her contention that she did not receive the letter from the Court. In her written submissions lodged on 19 June 2023, the applicant merely repeated the factual basis of her non-refoulement claim and her fear of returning to Indonesia due to the danger there.

13.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.  Following the order of the Judge dated 2 December 2021, the applicant was late for over 14 months when she filed her summons on 8 March 2023. This was a very long delay. The applicant’s bare assertion that she did not receive documents from the court is not a valid excuse as the documents were sent to the address she provided to the authorities, without being returned undelivered. In these circumstances, extension of time should not be granted unless there are real prospects of success in the intended appeal.

15.  In the present case, the Board heard the applicant and assessed her evidence, which it found to be fanciful and incredible. The Board’s findings were encapsulated at [30] to [33] of its decision. The Board went further and considered that even if the applicant’s evidence was accepted, it was not satisfied she would be subject to any relevant risk of harm if she returned to her country. The Board also found internal relocation to be a viable option. These were conclusions that the Board, as the primary decision-maker, was entitled to come to, for the reasons it gave in its decision. 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 raise any such public law grounds. We concur with the Judge’s view that there is no merit in the application for leave to apply for judicial review.

16.  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. The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to extend time and to grant leave for judicial review.

17.  We do not see any prospect of success in the intended appeal. The applicant’s summons dated 5 June 2023 is accordingly dismissed.