RE MASRUROH IMAS AND ANOTHER

CAMP 162/2019

[2020] HKCA 229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 162 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 337/2018)

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J U D G M E N T

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

1.  This is an application by the applicants for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 29 March 2019 refusing to grant extension of time for their application for leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 2 November 2017 dismissing the applicants’ appeal against the decisions of the Director of Immigration (“the Director”) dated 10 February 2015 and 6 June 2017 rejecting the applicants’ non-refoulement claim.

Background

2.  The 1^st applicant is a national of Indonesia.  She entered Hong Kong on 17 December 2012 to work as a foreign domestic helper.  She did not leave after her contract was terminated prematurely.  In 2014, she lodged a non-refoulement claim for herself and the 2^nd applicant her daughter (born in Hong Kong on 6 June 2014). 

3.  The applicants’ claim was based on threats from the ex-boyfriend of the 1^st applicant.  The details of the applicants’ claim have been summarised by the judge at [2] to [5] of the CALL-1 form.

4.  By a Notice of Decision dated 10 February 2015 (“the Director’s First Decision”), the Director decided against the applicants’ claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 6 June 2017, the Director also assessed the applicants’ claim based on the BOR 2 risk^[4], and decided against them.

6.  The applicants appealed to the Board.  After a hearing on 20 July 2017, the Board dismissed the appeal on 2 November 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [29] of the Board’s Decision, the Board held that the ex-boyfriend of the 1^st applicant is unlikely to cause harm to either of the applicants.  The Board was also satisfied at [28] that internal relocation would be viable.

The judge’s decision

8.  The applicants filed a Form 86 on 5 March 2018 which contained no ground for seeking relief.

9.  In the affirmation by the 1^st applicant dated 5 March 2018, the applicants advanced the following grounds for judicial review:

(1)  the Board unlawfully fettered his discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness;

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

(6)  irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(7)  irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

(8)  irrationality in the Board’s failure to analyze and assess whether state protection exists in Indonesia and misdirected himself as to the extended meaning of state protection;

(9)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(10)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicants;

(11)  procedural impropriety/unfairness by the Board in applying the incorrect standard of proof in his decision; and

(12)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicants resulting in unfair procedure.  

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons at [12] to [19] of the CALL-1 form:

“12. By then the applicants were late by about one month with their Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13. In the applicants’ case the time for filing their Form 86 expired on 2 February 2018, for which A1 did not provide any explanation for the delay in her affirmation, and at the hearing she explained she was unaware of the rule and mentioned something about giving birth to another child at that time, of which she did give any further details but I am prepared to accept her explanation and propose to focus more on the merit of the intended application to see whether the applicants can show that there is a reasonable prospect of success in persuading the Court that there are errors of law or procedural unfairness or irrationality in the Board’s decision.

14. Those grounds proposed by the applicants above are however all just broad and vague assertions containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was their legal representation from their assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and I do not find any basis or merits in any of them.

15. The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their 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 them insufficient time to prepare for their appeal.

16. Even if it is true that the hearing bundle indeed came to them late as alleged, and that the applicants 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 their NCF, records of their screening interviews and the Director’s decisions should be well familiar to the applicants as they had earlier all being made available to them when they still had legal representation, whilst their NCF was completed on A1’s own instructions with legal assistance, and that at the appeal hearing A1 never raised any issue or requested the adjudicator for further time to enable her to better prepare for their appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

17. 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 applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18. In the premises and having proceeded to consider 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 applicants’ claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, therefore I am not prepared to extend time to their application and accordingly dismiss their leave application.”

Application for leave to appeal and grounds for appeal

11.  By a summons dated 12 April 2019, the applicants sought leave to appeal out of time.  Their application was dismissed by the judge on 8 July 2019.

12.  By a summons in this Court dated 12 July 2019, the applicants stated that “I would like to get the permission of extension time for leave to apply for judicial review”.

13.  In the affirmation by the 1^st applicant of the same date, the 1^st applicant deposed that “I would like to get the permission of out of time appeal because as non Hong Kong citizen.  I don’t know the law process and I can’t find someone to help me.” 

14.  In their skeleton submissions dated 2 August 2019, the applicants submitted that:

(1)  the Director was wrong in dismissing the threat by the ex-boyfriend.  Because the applicants are currently in Hong Kong, his threat could only be verbal, but the Director should not overlook the fact that they will face real danger if they return to Indonesia;

(2)  the protection by the government in Indonesia is ineffective; and

(3)  Indonesia is a Muslim country and children born out of wedlock are discriminated against. The Board failed to appreciate this situation and the court should reconsider this argument.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

16.  As is apparent from the CALL-1 form, the judge refused to grant an extension of time because of the lack of merit in the proposed judicial review ([13] of CALL-1 form). As the judge’s refusal of an extension of time to bring judicial review proceedings is an interlocutory judgment, leave to appeal is required.

17.  The grounds of appeal set out in the skeleton submission complain of errors on the part of the Director and the Board, but do not identify any error on the part of the judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

18.  Further, for the third ground of appeal based on the danger faced by children borne out of wedlock, we observe that this ground was never raised as a ground for judicial review before the court below.  It is thus not open to the applicants to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 524, CAMP 54/2018 at §14(4)).

19.  Lastly, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicants to point out the procedural or other public law errors allegedly committed by the Board.  The judge would not be required himself to come to a view on the threats faced by the applicants or the state protection afforded to the applicants even if these grounds had been raised before the judge, as the primary decision maker is the Board.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

20.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 12 July 2019 is dismissed accordingly.

21.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.