RE SUMIATI

CAMP 37/2021

[2021] HKCA 834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 37 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 642 of 2018)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 19 August 2020 refusing her application for leave to apply for judicial review.

2.  The applicant had filed an affirmation in support of her application.  She had also lodged a written submission on 7 April 2021.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the summons, the affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 28 February 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 29 November 2016 rejecting her non-refoulement claim.

5.  The applicant is a national of Indonesia aged 43.  She first entered Hong Kong in October 2004 and was given permission to remain to work as domestic helper.  After her last employment contract was terminated in October 2012, she did not depart and overstayed in Hong Kong.  She was arrested by the police on 29 July 2013.  She raised a non-refoulement claim on 7 March 2014. 

6.  The applicant’s claim is based on her fear of being harmed or killed by her creditor as she was unable to repay her loan.  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the CALL-1 Form dated 19 August 2020[1] at [2] to [3].  We will not repeat them.     

7.  By his decision dated 29 November 2016, the Director rejected the applicant’s claim on the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] grounds.

8.  The applicant’s appeal to the Board was heard on 9 January 2018.  By its decision dated 28 February 2018, the Board dismissed the appeal.  Primarily, the Board was not satisfied on the evidence that the applicant’s claim was credible.  It did not accept that the applicant was indebted to a moneylender or that she was at risk of being harmed.  The Board further found that, even if the applicant’s claim was accepted, the risk would be negated by the availability of internal relocation options.  The Board concluded that the applicant failed to show she was entitled to non-refoulement protection on any of the appliable grounds.

9.  On 16 April 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Her grounds for seeking relief were set out in a written submission dated 11 May 2020, which was summarised by Judge at [8] of the CALL-1 Form as follows:  

“(1) procedural unfairness in that the Board had unlawfully fettered its discretion by refusing her appeal on the ground that they did not satisfy the requirement;

(2) procedural unfairness in that the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(3) that the majority of the documents in the hearing bundle were in English thereby giving her insufficient time to prepare for her appeal due to her limited skill in English and without legal representation that she was unable to find or afford a proper interpreter to assist her in the process of her appeal to the Board; and

(4) that the Board had significantly relied on the source of news not officially recognized or was simply hearsay or outdated in its consideration of her claim resulting in groundless speculations that it would be safe for her to return to her country of origin.” 

10.  For the reasons set out at [9] to [15] of the Form CALL-1 dated 19 August 2020, the Judge refused to give leave to apply for judicial review and dismissed the application.  

11.  In brief, the Judge observed that the applicant’s grounds contained only broad and vague assertions that were devoid of supporting particulars.  The Judge also pointed out that it is established law that assessment of credibility of claims and risks of harm are matters for the Director and the Board, who are the primary decision makers, and that the court will not intervene by way of judicial review unless there is legal error, irrationality or procedural irregularity in the primary decision makers’ decisions.  The Judge further noted that the Board had made adverse finding on the credibility of the applicant’s claim, and had also found that that even if her claim was to be accepted, the risk of harm was a localised one.  The Judge considered there was no error of law or procedural irregularity in the Board’s decision, and concluded that the applicant’s intended judicial review had no reasonable prospect of success.   

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  As the month of August falls within the Court’s summer vacation and is not to be taken into account in reckoning the period for making the appeal (see Order 3 rule 3 of the Rules of the High Court), the 14-days for the applicant to appeal the Judge’s decision dated 19 August 2020 ended on 14 September 2020.

13.  By a summons filed on 15 September 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 26 November 2020, and by his decision handed down on 14 January 2021[6] refused the application. On 29 January 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

14.  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. 

15.  The applicant was late by one day.  Like the Judge, we are prepared to accept her explanation for the delay, and would focus on the merit of her intended appeal. 

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’s decision, 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 has not provided any proposed grounds of appeal in her summons or affirmation.  In the written submission, she raised the following points:

(1)  There should be a proper and fair mechanism that allow unrepresented litigants to understand their claim.  It is not easy to make an appeal without knowing how the case was determined.

(2)  She has not been provided with proper legal and language assistance.  Owing to limitations in resources, funding and language capability, it has been burdensome for her to appeal.  It is unfair and a procedural irregularity that the Board’s decision was not read to her in her own language. 

(3)  There is throughout real procedural unfairness in her case. 

(4)  It cannot be said that assistance would be of no use when the assistance was not even available in the first place.

(5)  The authorities acted in a discriminatory manner towards non-refoulement claimants, aiming only to dispose of their cases quickly.  This is against the spirit of the judicial system.   

19.  What has been advanced by the applicant are broad and general representations.  It is established law that the high standard of fairness does not mandate the provision of legal assistance at all stages of processing a non-refoulement claim.  Non-refoulement claimants will be offered legal assistance when they make their non-refoulement claims to the Director. Legal assistance for the subsequent stages is offered on a case-by-case basis having regard to, among other matters, the merits of the case.  While she was not legally represented, the applicant was assisted by an interpreter at the appeal hearing before the Board.  It does not appear from the Board’s decision that the applicant had complained of language problem or difficulties caused by non-availability of legal representation.  In our view, the bare assertions made by the applicant do not amount to arguable grounds of appeal.

20.  As the Judge pointed out, the Board’s decision is primarily based on the adverse findings on the credibility of the applicant’s evidence and claim.  The applicant has failed to identify any real and substantial errors of law or procedural irregularities in the Board’s decision.  There is thus no proper basis for the intended judicial review application, and the Judge was right in refusing the application for leave to apply for judicial review.       

21.  For the above reasons, the applicant’s intended appeal against the Judge’s decision has no prospect of success.  This being the case, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 29 January 2021.