TASKEM v. TORTURE CLAIMS APPEAL BOARD V. DIRECTOR OF IMMIGRATION

CAMP 103/2018

[2018] HKCA 771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 103 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 591/2017)

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J U D G M E N T

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

INTRODUCTION

1.  On 25 June 2018, Deputy High Court Judge Woodcock (‘the Judge’) refused to grant the applicant leave to apply for judicial review (‘the Judge’s Decision’) against the Decision of the Torture Claims Appeal Board dated 21 April 2017 (‘the Board’ and ‘the Board’s Decision’).

2.  By a summons dated 10 July 2018, with supporting affirmation, the applicant applied to this Court for an extension of time to appeal against the Judge’s Decision (‘the Summons Application’).

3.  Pursuant to the directions of the Registrar of Civil Appeals dated 10 August 2018, the applicant has on 24 August 2018 lodged written submissions in support of the Summons Application within time.

4.  Pursuant to the directions of the Registrar of Civil Appeals dated 17 July 2018, this will deal with the Summons Application on paper.

BACKGROUND

5.  The basis of the applicant’s claim was that, if she were to return to Indonesia, she would be harmed or killed by her husband, or the loan sharks from whom her husband had borrowed money, for failing to repay her husband’s loans.

6.  The applicant’s alleged case was as follows.

7.  The applicant is an Indonesian national.  Her parents are deceased but she has one sister in Indonesia. The applicant herself was married at the age of 16 but her husband was a gambler, womanizer and an alcoholic.    Her husband had on occasion violently abused her but she had not sustained serious injuries nor had she been hospitalized.  He did not physically abuse her after their son was born.  The applicant had in fact separated from her husband after giving birth to their son in June 2003 but this did not stop him from pestering her and her family to repay his loans.  The loan sharks also continued to visit and harass her.

8.  The applicant started working as a domestic helper in Hong Kong in 2008.  In 2012, her husband borrowed some money and when he failed to repay, the loan shark approached her mother for repayment. Neither the applicant nor her family could repay that loan.  For several years until 2014 that loan shark would visit the applicant’s mother daily, demanding money but never hurting her.  In late 2012 the applicant’s husband disappeared and now the applicant does not know his whereabouts.

9.  When the applicant went home for a visit in 2013, some men almost immediately started harassing her, asking her to repay her husband’s debts.  They threatened to kill her and her mother if the debts were not repaid. The applicant left immediately and very soon after that went back to Hong Kong.  When her latest contract as a domestic Hong Kong was terminated prematurely, the applicant started to overstay.

THE DIRECTOR’S DECISION

10.  The Director of Immigration decided against the applicant’s torture claim on 18 September 2015 (‘the Director’ and ‘the Director’s Decision’).  The Director’s Decision covered the applicants’ rights under Article 3 of the Bill of Rights (right against torture and cruel and inhuman treatment etc), as well as her other statutory and convention rights against torture and persecution.

11.  By a further decision dated 16 June 2017, the Director assessed the applicant’s right under Article 2 of the Bill of Rights (right to life) but was again against the applicant (the ‘Director’s Further Decision’).

THE BOARD’S DECISION

12.  The applicant appealed the Director’s Decision to the Board on 24 September 2015 whose oral hearing was conducted on 30 August 2016.  As said, the Board dismissed the applicant’s appeal on 21 April 2017.

THE JUDGE’S DECISION

13.  Having considered the applicant’s supporting affirmation in her application for leave to apply for judicial review, the Judge held that the grounds for the said application were not made out mainly because there was a lack of particulars.  The Judge further held as follows :

“ 15. The adjudicator made a finding that the applicant was not at risk under any applicable ground according to the applicant’s own evidence. He set out in his decision his findings and reasons for his findings. He did consider State protection taking into account relevant, up-to-date and objective COI. The applicant had not claimed there was a flagrant consistent pattern of gross mass violation of human rights therefore, the adjudicator did not consider it. For the same reason, it was not necessary to assess State acquiescence. There are no merits in the grounds highlighted above.

16. I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that shows there was an error of law made by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

17. In my judgment, even if I am wrong that her application is time-barred, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

THE SUMMONS APPLICATION

14.  The applicant’s summons dated 10 July 2018 states as follows :

“ ...The Grounds of the proposed appeal will be as follows:- My life is danger that’s why I cannot go back to Indonesia As A human been I have right to living this Earth…” (‘Life in Danger Argument’)

15.  It is further stated in the supporting affirmation attached to the said summons that :

“ I, Taskem…solemnly and sincerely affirm as follows: I am the Applicant…I want to inform court I received letter from High Court but unfortunately I have no money that’s time my friend promise me but today morning give money then I come to court…” (‘Delay for Lack of Money Argument’)

16.  The applicant in her written submissions lodged on 24 August 2018 submits that, not only was her life in danger (i.e. Life in Danger Argument), but she feels disheartened by the miscarriage for her unborn baby. She is worried about her future.  She feels mentally unwell.  She observes the Immigration Department was unable to help her (the applicant’s ‘Personal Circumstances’).

LEGAL PRINCIPLES

17.  In Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134,and also Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :[1]

(a)   Length of the delay;

(b)   Reasons for the delay;

(c)   Prospect of the intended appeal; and

(d)   Prejudice to the putative respondent if extension of time was granted.

ANALYSIS

18.  The deadline for lodging her appeal against the Judge’s Decision was 9 July 2018, namely 14 days from 25 June 2018: RHC O. 53 r. 3(4).  The applicant only filed her Summons Application on 10 July 2018.  She was therefore late by one day.  Bearing in mind that the applicant is acting in person, the Court will treat that delay as insubstantial.  The Court will focus on the merits of the applicant’s intended appeal.

19.  The applicant’s Personal Circumstances are bare allegations which, in any event, has little if anything to do with the merits of her application.  They do not reveal or point to any error on the part of the Judge.

20.  The Director did consider the applicant’s Life in Danger Argument.  The applicant, however, failed to supply further information to the Director to substantiate how it was that her repatriation would mean the end of her life.

21.  We have said many times before that the evaluation of risk of harm is primarily a matter for the Director and the Board, and that they are entitled to make such evaluation based on the evidence available to them.  The Court of Appeal will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment of the Board in the hope that the Court may consider the matter afresh in the absence of any legal error.  See Re Lakhwinder Singh [2018] HKCA 246, Re Daljit Singh [2018] HKCA 328 and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 40.

DISPOSAL

22.  As it cannot be demonstrated that there is any error of law or procedure in the proceedings before the Board or the Judge, or that there is any reasonably arguable basis to challenge the fairness of those proceedings, the Judge was, in our judgment, correct to refuse the applicant leave to apply for judicial review.  It follows that there is no merit in the Summons Application and it must be dismissed.