SRIATIN-NGATIMIN alias NGATIMIN SRIATIN alias SRIATIN NGATIMIN v. TORTURE CLAIMS APPEAL BOARD

CAMP 211/2023, [2024] HKCA 836

On Appeal From [2022] HKCFI 3181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 211 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 169 OF 2019)

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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 17 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 11 January 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 13 June 2018 rejecting her non-refoulement claim.

2.  On 4 May 2023, the Judge refused to extend time for the applicant to appeal against his decision of 17 October 2022.

Background

3.  The applicant is a national of Indonesia born in 1976.  She had first entered Hong Kong to work as a foreign domestic helper in 1997.  She last entered Hong Kong on the strength of her Indonesian passport on 10 July 2010 and was permitted to remain as a domestic helper until 25 July 2011.  She was then granted an extension of stay as a domestic helper until 10 July 2012.  The applicant overstayed and was subsequently arrested more than 5 years later in November 2017.  After her arrest, she lodged her non-refoulement claim on the basis that she would be harmed or killed by her creditor (Mr. Darno) as a result of her inability to repay a loan secured for her father’s hospital bill, if she 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 13 June 2018, 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 October 2018, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 11 January 2019, the Board dismissed the appeal and confirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [9] of the Form CALL-1:

“ 9. In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to her claimed fear of harm from her creditor over her outstanding debts that caused her to leave her country for Hong Kong that it doubted the credibility of her claim, but found in any event that it was a private monetary dispute between the two of them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other part of the country without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.”

The Judge’s decisions in the court below

6.  On 17 January 2019, 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 again did not specify any grounds but merely annexed the hearing bundle used before the Board and the Board’s decision.

7.  The applicant requested an oral hearing and it was held on 14 July 2022, but the applicant did not appear.  The Judge thereafter considered the application on the basis of the documents alone.  On 17 October 2022, the Judge issued his decision to refuse to grant leave to apply for judicial review.  The reasons were set out in [11] to [17] of the Form CALL-1 as follows:

“ 11. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act procedurally unfair or fail to take into account of relevant COI or which news of source were unofficially recognized or hearsay or outdated. 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 her intended challenge.

12. 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.

13. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her late prior to her 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 her insufficient time to prepare for her appeal.

14. Even if it is true that the hearing bundle indeed came to her 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 her NCF, records of her screening interview and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing before the Board she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board, and I do not find this ground reasonably arguable for her intended challenge either.

15. 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 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.

16. 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.

17. 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.”

8.  The applicant failed to appeal against the Judge’s decision within 14 days as prescribed in Order 53 rule 3(4) of the Rules of the High Court (Cap 4A).  The applicant filed a summons on 16 February 2023 together with a supporting affirmation to apply for extension of time for filing the notice of appeal.  In her affirmation, the applicant stated that she did not receive the Form CALL-1 at her correspondence address, that she did not understand the English language, that the court did not provide her with language assistance in explaining the Form CALL-1, that she requested a hearing to be arranged for the Form CALL-1 to be read to her with a reasonable timeframe to respond, that she could not elaborate on the errors of the Board without legal and language assistance, and that she was unable to attend the hearing due to not receiving the letter.  In her written submissions, she further submitted that she was suffering from a medical condition.  An oral hearing was held on 20 April 2023, but the applicant was absent without giving notice or explanation.  On 4 May 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 realistic prospect of success in her intended appeal.

The renewed application before this Court

9.  By summons filed on 5 June 2023, the applicant made “a Renewal Application for time extension for [her] Notice of Appeal against the order of High Court on 4 May 2023”.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 17 October 2022 refusing leave for judicial review. 

10.  In the applicant’s supporting affirmation, she stated that she disagreed with the decision-making authorities, that she did not think that her case was determined fairly, and that the lower court did not hear her in person.

11.  Pursuant to the directions of the Registrar of Civil Appeals dated 5 June 2023, the applicant lodged her written submissions on 16 June 2023.  She submitted that she disagreed with the Director and the Board, that she did not think that her case was determined fairly, that she was not provided with proper legal and language assistance resulting in procedural unfairness, that assistance should be provided at a hearing, and that the authorities are discriminatory by quick disposal of non-refoulement cases.

12.  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

13.  The applicant was late for about 3.5 months when she filed her summons on 16 February 2023.  In her supporting affirmation, the applicant stated that she did not receive the Form CALL-1 at her correspondence address, that she was unable to attend the hearing due to not receiving the court letter, that a hearing should be arranged and that she could not elaborate on the errors of the Board without legal and language assistance.  As this was a substantial and unjustified delay, the court will not extend time unless there are real prospects of success in the intended appeal.

14.  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.

15.  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 her evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim, because it considered that the applicant was not a truthful and reliable witness, that the past incidents did not reach the requisite level of harm, that there was no real risk of serious harm upon refoulement, that reasonable state protection was available, that there was no risk of persecution, and that internal relocation to other parts of Indonesia was a viable option.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  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.

17.  As to the complaints about lack of language and legal  assistance, it has been repeatedly stated by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We note that all the Court documents filed in this appeal and in the Court below were in English.  It is thus clear that either the applicant was herself conversant with the English language or she had access to language assistance of her own if she found it necessary.  Further, we note that the applicant was legally represented in the initial preparation of her case by the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of her claim.  Therefore, we do not find the non-availability of legal representation in the processes before the Board or the court to amount to procedural unfairness. 

18.  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.  In relation to the applicant’s claim that she did not receive the court’s letters and judgments, we are satisfied that the court record shows that the judgment and letters have been sent to the applicant’s last reported address without being returned as undelivered mail.  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.

19.  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 5 June 2023 is accordingly dismissed.