SUMINEM v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 3/2021

[2021] HKCA 1015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 15 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 18 January 2019, Deputy High Court Judge Bruno Chan refused to grant leave to the applicant to seek judicial review out of time of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 7 September 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file her appeal ended on 1 February 2019.  The application was dismissed by the judge on 8 December 2020[2].

3.  On 4 January 2021, the applicant filed the present summons stating that the judge could not show any good cause for his decision.  This application should be treated as a renewed application for extension of time to appeal against the judge's decision of 18 January 2019, see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.  The applicant is a national of Indonesia.  She is 43 years old.  She last arrived in Hong Kong to work as a domestic helper on 26 July 2013.  Her employment contract was terminated prematurely.  She subsequently overstayed and was arrested by the police on 9 November 2013.  She lodged her non-refoulement claim on 25 February 2014 on the basis that she will be harmed or killed by her creditor if she returns to Indonesia because she failed to repay the loan to her creditor.

5.  Notwithstanding she has a husband in Indonesia, she got married to a Hong Kong resident in July 2017 and applied for a dependant visa. The application was rejected by the Immigration Department in 2018.

The Director’s decisions

6.  By a Notice of Decision dated 13 July 2016, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

7.  By a Notice of Further Decision dated 15 May 2017, the Director rejected the applicant’s claim on BOR 2 risk[6] in the absence of response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim. 

The Board’s decision

8.  The applicant appealed against the Director’s decisions to the Board.  She was absent from the hearing before the Board scheduled on 25 May 2017.  The Board attempted to contact the applicant both before and after the scheduled hearing but failed to reach her.  The Board adjourned the hearing and sent a letter to the applicant requesting for an explanation for her failure to attend the hearing.  There was no reply from the applicant so the Board assessed her claim on the materials previously presented to the Director.  The Board considered there is insufficient evidence to establish that if the applicant were to return to Indonesia she would be at real risk of experiencing any of the types of harm that would entitle her to protection under Hong Kong law as she only had experienced one death threat from a loan shark a long time ago, she had not experienced anything that would amount to a threat to her life, persecution, torture or cruel, inhuman or degrading treatment or punishment and she was able to live in another part of Indonesia for three years without any interaction with the claimed loan shark.  The Board further held there is clearly no state agency or acquiescence in this case. Therefore, the appeal was dismissed by the Board on 16 August 2017.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 3 January 2018 for leave to apply for judicial review against the decisions of the Director and the Board, more than six weeks after the expiry of the three-month time limit.  She put forward the following grounds for her intended challenge:

(1)  procedural impropriety in their failure to consider the concept of extended state acquiescence when considering her claim;

(2)  procedural impropriety in the Director’s failure to conduct sufficient enquiry into the relevant country of origin information (“COI”);

(3)  irrationality in failing to give reasons for assessment of the lack of BOR 3 risk and/or insufficient basis to support the conclusion of lack of BOR 3 risk;

(4)  error/misdirection in law in taking into account irrelevant considerations including the manner of her departure from Indonesia and failing to assess the relevant COI that she would not face risk upon her refoulement; and

(5)  error/misdirection in law in failing to take into account the consideration of psychological strain and threats to her and to her family.

The judge’s decision

10.  The applicant attended the hearing before DHCJ Bruno Chan on 12 October 2018.  The judge considered that the applicant’s proposed grounds are just broad and vague assertions without any particulars, specifics or elaborations.  The judge concluded that there is no reasonably arguable basis in her intended challenge.  There was also no explanation for the delay in filing her Form 86.  He therefore refused to grant any extension of time and dismissed the application on 18 January 2019.

Grounds of intended appeal

11.  In the applicant’s summons, she stated the following grounds of appeal:

(1)  the judge refused her application without showing any good cause for his decision;

(2)  her claim is correct, true and practical.

12.  In her written submissions, she further contended that:

(1)  her enemies were very powerful and influential.  They are terrorists;

(2)  the police and other administration did not help her.

Analysis and disposition

13.  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.

14.  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 18 January 2019.  The applicant took out a summons at the court below on 7 September 2020.  She was late by more than 17 months, exclusive of the court’s summer vacation during the period of August.  The delay is very substantial.  

15.  The applicant explained to the judge at the hearing on 5 November 2020 that she did not receive the decision by post and she was only informed of the decision by the immigration officer but by then the time for lodging the appeal has already expired.  The court sent the decision by post on 18 January 2019 to the applicant’s address which is different from the applicant’s current address as stated in her present summons.  The applicant has not filed any notice of change of address for service to notify the court of her new address.  Under these circumstances, the applicant’s explanation for her substantial delay cannot be considered as justifiable as it is established that a litigant has the duty to give the court an address to which correspondence or notice can come to his or her attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). 

16.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

17.  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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  The applicant’s complaint concerning the judge’s failure to show any good cause for his decision is wholly without basis.  The judge has provided detailed explanation in paragraphs 16 to 18 of his decision dated 18 January 2019 and his reasons are well founded.

19.  The rest of the applicant’s grounds and submissions in the present application are just bare assertions without particulars, elaboration or evidence in support.  She has failed to show any prospect of success in the intended appeal.  We therefore refuse to grant extension of time to appeal against the judge’s decision of 18 January 2019 and dismiss the summons filed on 4 January 2021.

[1] [2019] HKCFI 161

[2] [2020] HKCFI 2974

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.