SITI SARMIATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 180/2020

[2021] HKCA 247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 180 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1148 OF 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 5 October 2018, Deputy High Court Judge Josiah Lam refused the applicant’s application for leave to seek judicial review 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 30 June 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 19 October 2018.  The application was heard by Deputy High Court Judge Bruno Chan on 27 August 2020 and dismissed on 17 September 2020[2].

3.  On 28 September 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge's decision of 5 October 2018.

4.  The applicant is a national of Indonesia.  She is 43 years old.  She came to Hong Kong to work as a domestic helper in 2005. She last entered Hong Kong on 15 July 2011 and her employment contract was terminated in January 2012.  She overstayed and was arrested on 7 February 2013.  She raised a torture claim on 6 March 2013.  She also lodged a non-refoulement claim which was received by the Director on 11 February 2014.  Her claim was made on the basis that her life would be endangered by her husband and his loan shark.

The Director’s decisions

5.  By a Notice of Decision dated 18 August 2016, the Director rejected the applicant’s claim on BOR 3 risk[3], torture risk[4] and persecution risk[5]. 

6.  By a Notice of Further Decision dated 11 August 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

7.  The applicant appealed against the Director’s decisions to the Board.  The hearing of the appeal was conducted before the Board on 12 September 2017.  The Board assessed that the risk of harm to the applicant is very low.  According to the applicant’s own evidence, she would stay with her mother and sister if she returns to Indonesia and her husband does not know where they live.  Besides, the applicant was not previously harmed by the loan shark so her claim that she may be harmed in the future is merely speculative.  The Board also considered that there is adequate state protection and services to protect and assist the applicant in Indonesia.  Thus, the Board dismissed the applicant’s appeal on 14 December 2017.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 28 December 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.  She put forward the following grounds[7]:

(1)  failure to consider the concept of extended state acquiescence;

(2)  failure to conduct sufficient enquiry into the relevant country of origin information and to consider the humanitarian reason;

(3)  failure to give reasons or sufficient basis for the conclusion of lack of BOR 3 risk;

(4)  the Board did not focus on her fear; and

(5)  failure to give sufficient reason why the applicant would not be subjected to torture upon refoulement.

The judge’s decision

9.  The applicant attended the hearing before DHCJ Josiah Lam on 13 and 27 June 2018.  The judge dealt with her application in relation to the Board's decision only as the decision of the Director is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant: Re Moshsin Ali [2018] HKCA 549. 

10.  The judge considered the applicant’s complaints not reasonably arguable.  The Board had duly considered the relevant country of origin information and was entitled to conclude there were adequate state protection and services to protect and assist the applicant in Indonesia.  The Board was not required to consider the concept of extended state acquiescence humanitarian reason as it was not the applicant's case that the state of Indonesia had acquiesced and there was no humanitarian concern in the applicant's case.  The adjudicator clearly understood the applicant's situation including her fear and had stated clearly why she considered there was no real risk that warranted non-refoulement protection in the applicant's case.  The judge found that the adjudicator had proper basis for her finding, conclusion and decision and had achieved the high standards of fairness. Therefore, the judge dismissed the application on 5 October 2018.

Grounds of intended appeal

11.  The applicant stated her intended grounds of appeal in her written submissions which may be summarized as follows:

(1)  her problem in her home country is real;

(2)  the Director and the Board failed to make sufficient enquiry into the relevant country of origin information and adopted a passive approach in contravention of the high standards of fairness; and

(3)  they failed to take into account relevant considerations or took into account irrelevant considerations.

Analysis

12.  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.

13.  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 5 October 2018.  The applicant took out a summons at the court below on 30 June 2020.  She was late by more than 19 months[8].  The delay is very substantial.

14.  The applicant explained that she failed to file a notice of appeal within the prescribed time as she has married a Hong Kong resident and has been waiting for the approval of her dependant’s visa by the Immigration Department.  This is not a justified reason for the serious delay.

15.  As her delay is inexcusable, she 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.

16.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

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 grounds are just bare assertion without particulars or evidence in support.  She failed to show 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. 

19.  As the applicant does not have any prospect of success in the intended appeal, we refuse to grant extension of time to appeal and dismiss the summons filed on 28 September 2020.

[1] [2019] HKCFI 2249

[2] [2020] HKCFI 2308

[3] 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.

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

[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.

[7] See §28 Call-1 & attachment to Folio 2 in HCAL file

[8] Exclusive of the court’s summer vacation