TJHAI TET LIUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 223/2024, [2025] HKCA 232

On Appeal From [2024] HKCFI 1517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 223 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1515 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) dated 18 June 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 5 March 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 13 December 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant, aged 54, is an Indonesian. He arrived in Hong Kong as a visitor on 6 January 2007 and he had overstayed since 14 January 2007. He was arrested by the police on 30 September 2016. The applicant first lodged his non-refoulement claim on 24 October 2016, but withdrew it subsequently on 3 August 2017. On 5 September 2017, the applicant applied to re-open his non-refoulement claim. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor because of the outstanding loan.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] By a notice of decision dated 13 December 2017, the Director rejected the claim.

4.  The applicant appealed to the Board against the Director’s decision. The Board considered that the appeal can be justly determined without a hearing and the case was therefore processed on such basis. In its decision dated 5 March 2019, the Board dismissed the appeal and affirmed the decision of the Director. The Board’s reasoning was summarised by the Judge at [14] to [15] of the Form CALL-1:

“ 14. The Board found that the creditor had no real intention to inflict severe bodily or mental harm on the applicant. The fact that the creditor was imprisoned for his wrongdoings also indicated that state protection was available to the applicant. Meanwhile, the applicant’s decision to make a non-refoulement claim only after more than ten years when he was caught indicated he did not face a real and imminent risk. In any event, there was no reliable evidence from the applicant regarding his business, the loan and his encounters with the creditor.

15. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk. Furthermore, internal relocation was also available to the applicant. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.”

The Judge’s decisions in the court below

5.  On 3 June 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. In his supporting affirmation, he did not raise any specific ground, but simply stated that he was not satisfied with “the decision of Immigration”. As the applicant can only apply for leave for judicial review the Board’s decision, his reference to the Immigration will be taken as a reference to the Board.

6.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing. On 18 June 2024, the Judge issued his decision refusing to grant the applicant leave to apply for judicial review. The reasons were set out in [18] to [24] of the Form CALL-1 as follows:

“ 18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

21. There is no complaint that the Board did not hold a hearing for the applicant’s appeal. As the Board had raised no credibility issue on the applicant’s alleged facts, there is nothing amiss for the Board not holding a hearing for the appeal.

22. For the reasons given by the Board as set out above, the Board was entitled to form its views and conclusion that the applicant will not be subjected to any of the applicable risks if he returns to Indonesia.

23. The applicant has raised no valid reason to challenge the Board’s Decision.

24. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

7.  On 15 July 2024, 13 days[6] after the expiry of the 14-day limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant made an application for leave to appeal out of time the Judge’s decision dated 18 June 2024. He claimed that he was late because he did not receive the decision.

8.  On 30 August 2024, the Judge issued his decision in writing. The Judge found that his decision of 18 June 2024 was sent to the applicant at his last known address without return from the Post Office, so that he was deemed to have received it. In any event, the applicant failed to show any realistic prospect of success in his intended appeal, so that his application for extension of time to appeal was refused.

The renewed application before this Court

9.  By summons filed on 12 November 2024, the applicant made an application to this Court for leave to appeal the Order of the Judge dated 30 August 2024 out of time, without specifying any ground in his affirmation. We shall treat this as a renewed application for extension of time to appeal against the Judge’s decision dated 18 June 2024, which refused the applicant leave for judicial review.

10.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 12 November 2024. Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

11.  The applicant was late for 13 days when he filed his initial summons on 15 July 2024. His claim in his supporting affirmation that the delay was due to his failure to receive the Judge’s decision of 18 June 2024 had already been dealt with by the Judge in his decision dated 30 August 2024. Nonetheless, as this was not a very lengthy delay, we are prepared to focus on the merits of his intended appeal.

12.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board had assessed the applicant’s case providing detailed reasons. The Board rejected the applicant’s non-refoulement claim because it considered that the creditor had no real intention to inflict severe harm on the applicant. It also cast doubt on the applicant’s claim because of his delay in seeking non-refoulement protection and there was also no reliable evidence regarding his business, the loan as well as his encounters with the creditor. In any event, both state protection and internal relocation would be available to the applicant. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

14.  It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. The applicant has failed to establish or even identify any such public law grounds.

15.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

16.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 12 November 2024 is accordingly dismissed.