RE SUJADI

CAMP 434/2022, [2024] HKCA 999

On Appeal From [2022] HKCFI 1142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 434 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 310 OF 2019)

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J U D G M E N T

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

1.  By a summons filed on 21 October 2022, the applicant reapplied to this court for extension of time to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 21 April 2022 refusing his application for leave to apply for judicial review ([2022] HKCFI 1142) (“the Leave Decision”). By a subsequent decision dated 7 September 2022, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 2660) (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 31 January 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 19 April 2018 rejecting his claim for non‑refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

4.  Subsequently, this court was notified by the Immigration Department on 13 September 2024 that the applicant had been removed voluntarily back to his home country.

Background

5.  The applicant is a national of Indonesia.  The applicant last arrived in Hong Kong on 25 September 2009 and was allowed to remain as a visitor until 7 November 2009.  He did not depart and had overstayed since 8 November 2009.  On 14 November 2009, he was arrested by the police.  On 9 December 2009, he raised a torture claim which was rejected by the Director on 21 June 2013. On 16 July 2013, he raised a non‑refoulement claim on the basis that, if refouled, he would be harmed or killed by his neighbour Suyoto because he had borrowed several loans from Suyoto but failed to repay them.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [4] of the Leave Decision.

6.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk^[1], namely BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

7.  The applicant then appealed against the Director’s Decision to the Board.  On 8 August 2018, he attended an oral hearing before the Board and gave oral evidence.  On 31 January 2019, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board found material inconsistencies in the applicant’s evidence.  Having assessed the evidence, the Board considered that the applicant had failed to substantiate his claim on any of the applicable grounds under his non-refoulement claim.

The Leave Decision

8.  On 1 February 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not specify any ground of review in his Form 86 or supporting affirmation.  As the applicant did not request an oral hearing, the Deputy Judge considered his application on paper.

9.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [9] ‑ [14] of the Leave Decision:

“9. On 1 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his 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 his intended challenge.

10. 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.

11. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 ‑ 77 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. 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.

14. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The EOT Decision

10.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

11.  On 6 May 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was one day late with his intended appeal.  In his summons, the applicant did not provide any ground in support of his application.  In his supporting affirmation, he stated that he did not receive the Leave Decision timely from the High Court because he had moved to a new residence without informing the court.  As the applicant was absent from the oral hearing on 24 August 2022, the Deputy Judge considered his application on paper.

12.  By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal.  Whilst the applicant’s delay of one days was not significant, the Deputy Judge noted from the court record that the Leave Decision was sent on the same day to the applicant’s last reported address without being returned through undelivered post, and the applicant should bear the consequence for his failure to inform the authorities of his change of address.  The Deputy Judge focused on the prospect of the applicant’s intended appeal and held that in the absence of any errors in the decision clearly and properly identified by the applicant, there was no prospect of success in his intended appeal.

The Present Application

13.  By a summons and supporting affirmation both filed on 21 October 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, he only repeated that he did not receive the Leave Decision from the High Court.

14.  In his written submissions lodged on 31 October 2022, the applicant claimed that the same level of threat still exists in Indonesia and he feared to return to his home country “because of domestic violence that [he] experienced there”.  He also asserted that the Board failed to make sufficient enquiry before finalising its decision and failed to inquire from the Indonesia authorities.  He claimed his life would be in great peril if he went back to Indonesia and that he had no faith in the authorities.  He also cited section 37ZO of the Immigration Ordinance but did not state how the provision was relevant to his case.

Discussion

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  The applicant’s delay of one day is not significant, and for the present purpose, we will focus on the merit of his intended appeal.

17.  The 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].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].

18.  In our view, the application has no merit at all and must fail.  At the outset, the applicant has failed to specify any ground of appeal and his assertions are all general and bare assertions without pointing out any specific error in the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Accordingly, his assertions are not viable grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  His intended appeal must fail on this basis alone.

19.  Although he cited section 37ZO of the Immigration Ordinance, he did not elaborate how it was relevant to his case and his present application.

20.  As his intended appeal has no prospect of success, it will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 21 October 2022 dismissed.

21.  On 13 September 2024, the court was notified by the Director that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.