ANI NUR AINIAH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 287/2021

[2021] HKCA 1653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 287 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 784 OF 2018)

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J U D G M E N T

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

1.  By a summons dated 27 July 2021, the Applicant applied to this Court for an extension of time to appeal the order made by Deputy High Court Judge Bruno Chan (“the Judge”)  on 8 April 2021 refusing to grant leave to apply for judicial review.

2.  Having considered the Applicant’s summons and supporting affirmation dated 27 July 2021 and the written submissions dated 9 August 2021, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.  The Applicant is a national of Indonesia.  She first arrived in Hong Kong on 16 May 2007 with permission to remain in Hong Kong to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, whichever was the earlier.  Her last employment contract was terminated on 20 February 2011.  She overstayed, and was arrested on 4 April 2012.  She completed a non-refoulement claim form on 26 November 2014 on the basis that if refouled, she would be harmed or killed by her father’s creditor over her father’s debt and/or by her family and the Muslim community for her homosexuality.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2021] HKCFI 925).

4.  By a Notice of Decision dated 26 June 2015, the Director of Immigration (“the Director”)  rejected the Applicant’s non-refoulement claim on the following grounds: risk of torture,[1] BOR 3 risk,[2] and persecution risk[3] (“the Director’s Decision”).

5.  By a Notice of Further Decision dated 1 November 2016, the Director again rejected the Applicant’s claim in the absence of any response from the Applicant to the Director’s invitation to her to submit any additional facts or matters which might be relevant to her non-refoulement claim on all applicable grounds including BOR 2 risk[4] (“the Director’s Further Decision”).

6.  By then, the Applicant was already in the process of appealing the Director’s Decision to the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”)  under a notice of appeal filed on 10 July 2015.  The Applicant failed to attend the oral hearing before the Board on 28 December 2016 without any explanation.  The Board proceeded to deal with her appeal in her absence and on paper.

7.  On 28 March 2018, the Board dismissed the Applicant’s appeal and affirmed both the Director’s Decision and Further Decision (“the Board’s Decision”).  The Board, on the basis of the materials previously provided by the Applicant and in the absence of any oral evidence from her to clarify, explain, or establish her claim due to her failure to attend the appeal hearing, had doubts about that the Applicant’s claim in respect of her alleged sexual orientation, or fear of harm from her parents or the Muslim community or her father’s creditor upon her return to Indonesia.  The Board considered that in any event, in the absence of any official involvement, state/police protection would be available to her if needed, and there was reasonable internal relocation option open to her to move safely to other areas away from her home district without any risk of being located.  The Board concluded that her claim for non-refoulement protection failed on all applicable grounds.

8.  On 4 May 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

9.  On 8 April 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§11-14 of the Form CALL-1, the Judge stated as follows:

“[11] On 4 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim of fear of harm from her father’s creditor or the Muslim community over her alleged homosexuality but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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] In the Applicant’s case, 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 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.

[14] 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.”

THE JUDGE’S EXTENSION DECISION

10.  Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  Upon the expiration of the said 14-day period, no notice of appeal was filed against the Judge’s order refusing to grant leave to apply for judicial review.  On 28 April 2021, the Applicant filed a summons for extension of time to appeal the Judge’s order.  The Judge found that while the delay of 6 days in the present case might not be regarded as being significant, the Applicant had failed to provide any good reason for her delay (see [2021] HKCFI 1993, at §§4-5).

11.  Citing various authorities, the Judge held that in considering whether to extend time for appealing an order refusing leave to apply for judicial review, the court would 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 (§3).

12.  The Judge focused on the merits of the intended appeal and found that the Applicant had not advanced any proper or valid grounds of appeal (§6).

13.  Accordingly, on 13 July 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed her application.

THIS APPLICATION

14.  The Applicant did not set out any ground of appeal in her summons dated 27 July 2021.  In her supporting affirmation also dated 27 July 2021, the Applicant stated that she opposed and disagreed with the decisions made by the authorities and the court.

15.  In her written submissions dated 9 August 2021, the Applicant’s advanced (inter alia) the following grounds of appeal: (i) no legal representation was provided in respect of the assessment of the BOR 2 risk by the Director; (ii) there was a lack of language assistance in respect of the assessment of the BOR 2 risk; (iii) the court and the authorities were negligent and failed to observe the duty of care owed to non-refoulement claimants like the Applicant; and (iv) the Board acted in a procedurally unfair manner.

DISCUSSION

16.  In deciding whether to grant an extension of time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time were granted.

17.  The prospect of success of the intended appeal is important: the court will not grant extension of time for a hopeless appeal to be pursued, see Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

18.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

19.  We agree with the Judge that the delay of 6 days in this case is not significant, and shall focus on the merits of the Applicant’s intended appeal.

20.  There is no merit in the Applicant’s complaint that she had no legal representation in relation to the assessment of BOR 2 risk bearing in mind that she did not, as a matter of fact, respond to the Director’s invitation to submit any further information which might be relevant to her non-refoulement claim on all applicable grounds including BOR 2 risk.  There is no suggestion, or evidence, that she failed to respond because she had no legal assistance.

21.  There is also no merit in the Applicant’s complaint that there was procedural unfairness due to a lack of language assistance.  The relevant high standard of fairness does not include the provision of interpretation service at any time that a non-refoulement claimant requires or desires: Karamjit Singh (supra), at §21.

22.  The Applicant’s complaints that the court and the authorities were negligent or failed to observe the duty of care owed to non-refoulement claimants, or the Board acted in a procedurally unfair manner, are simply bare, unsubstantiated, assertions.

23.  The Applicant has not shown any errors in the Judge’s decision refusing to grant leave to apply for judicial review, or any viable grounds of appeal in her summons, supporting affirmation, or written submissions.

24.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

25.  The application for extension of time to appeal is refused, and the Applicant’s summons of 27 July 2021 is dismissed.