RE TASINIH

CACV 353/2022

[2023] HKCA 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 353 OF 2022

(ON APPEAL FROM HCAL 430/2022)

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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 appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 26 July 2022 refusing to extend time for the applicant to apply for leave for judicial review and dismissing her leave application. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 8 October 2018 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 27 March 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 20 July 2015 as a foreign domestic helper, but after the premature termination of her employment contract, she overstayed and was arrested by the police on 27 February 2017.  Thereafter, she lodged a non-refoulement claim on 10 March 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by her husband.  The details of the applicant’s claim have been summarised by the Judge at [1] to [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 27 March 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed to the Board.  After an oral hearing on 7 September 2018, the Board dismissed the appeal by the Board’s Decision, which covered all four grounds for non-refoulement protection.  The Board found that given that the applicant had not been in contact with her husband since 2012, the risk of harm from him was low, and any such risk could in any event be mitigated by the applicant’s internal relocation in Indonesia.

The Judge’s decision

6.  The applicant filed a Form 86 more than three years out of time on 6 June 2022, seeking to judicially review the Board’s Decision. 

7.  In her supporting affirmation, the applicant exhibited a copy of the Board’s decision and said that she was not satisfied with it, claiming that there was “no transparency” in it.   

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to extend time for the applicant’s application nor grant her leave to apply for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [10] to [18] of the CALL-1 Form:

“10.  On 6 June 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just stated that she is not satisfied with the decision as it was way from facts and reality of her case and that there is no transparency in the decision but without providing any details or particulars or elaboration as to how it was so, nor did she request any oral hearing for her application.

11.  By then the Applicant was also seriously out of time with her application, as Order 53 rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day 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.

12.  As the last day of the three-month period for her to file her Form 86 fell on 8 January 2019, the Applicant was therefore more than 3 years late with her application, and in considering whether to extend time, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and inordinate, for which she did not provide any explanation in her Form or supporting affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good or valid reason for her such serious delay.

14.  As for the merits, if any, of her intended application, as noted above those bare assertions of the Applicant are without supporting details or particulars that I do not find any of them reasonably arguable for her intended challenge, 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 merits in her intended application either.

15.  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.

16.  In the Applicant’s case, 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 her 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.

17.  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.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her extremely serious delay, I refuse to extend time and accordingly dismiss her leave application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 31 August 2022, the applicant stated that “High Court have no reason to dismissed my leave. I strongly appeal”.  She also asserted that it was “not possible that [she] found error [presumably in the Board’s Decision], but the High Court did not”.  She did not, however, explain what the supposed error or errors might have been.

10.  The applicant lodged written submissions on 14 September 2022, in which she submitted, inter alia, that her “enemy were powerful” and that she would be killed if she returned to Indonesia.

11.  By a letter dated 19 January 2023, the applicant informed the court that she was being held at “CIC” (i.e. Castle Peak Bay Immigration Centre)  and asked for a copy of this court’s decision.

12.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

13.  The applicant has in her Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  The allegation that the Judge failed to find the errors in the Board’s Decision does not assist her in the absence of any details as to the nature of such alleged errors.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening. The applicant has wholly failed to do so.

14.  Moreover, in her application in the court below, despite what is asserted in her Notice of Appeal, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

15.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant 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 whether the applicant would face any of the proscribed risks of harm upon return.  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.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

16.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

17.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.