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CAMP 121/2023, [2023] HKCA 890
On An Intended Appeal From [2022] HKCFI 3447 &
[2023] HKCFI 799
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 121 OF 2023
(ON AN INTENDED APPEAL FROM HCAL NO 855 OF 2022)
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BETWEEN
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DUKPA AMRITA TSHERING |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/ |
Putative |
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NON-REFOULEMENT CLAIMS |
Respondent |
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PETITION OFFICE |
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and |
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DIRECTOR OF IMMIGRATION |
Putative |
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Interested Party |
________________________
| Before: |
Hon G Lam and Chow JJA in Court |
| Date of Written Submissions: |
11 April 2023 |
| Date of Judgment: |
10 August 2023 |
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 24 March 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 23 March 2023 refusing to grant her an extension of time to appeal against the Judge’s earlier order dated 11 November 2022 (“the Order”) refusing to grant her leave to apply for judicial review.
2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 27 July 2022, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 April 2022 rejecting the Applicant’s non-refoulement claim.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
4. The Applicant is a national of India. She last arrived in Hong Kong on 4 July 2018 with permission to stay in Hong Kong to work as a foreign domestic helper until the expiration of her employment contract, or within 14 days of its termination, whichever was the earlier. The Applicant’s employment contract was prematurely terminated on 29 July 2021. She failed to leave Hong Kong after the expiry of her limit of stay and overstayed illegally. On 2 August 2021, the police arrested the Applicant for having made a false representation to an immigration officer. She was later convicted of that offence and sentenced to imprisonment for 12 months, during which she raised a non-refoulement claim alleging that, if refouled, she would be harmed or killed by her husband’s brother over some land dispute. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.
5. By a Notice of Decision dated 8 April 2022, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).
6. The Applicant appealed the Director’s Decision to the Board. On 27 July 2022, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:
“In its decision the Board found no evidence even on the Applicant’s own case of any threats or ill-treatment ever inflicted to her by her husband’s brother or of any intention of him to harm her over her husband’s land or estate, that in any event it was a private family dispute between her husband and his brother without any official involvement that state/police protection would be available to the Applicant upon her return to India as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.”
7. On 30 August 2022, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in the Form 86. In her supporting affirmation filed on the same date, she stated that she was not satisfied with the Board’s Decision, and complained that there was a lack of “transparency”.
THE JUDGE’S DECISION
8. On 11 November 2022, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:
“[11] 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 India, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
[12] 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.”
9. On 12 December 2022, the Applicant applied by summons for an extension of time to appeal against the Order. On 23 March 2023, the Judge refused the application, holding that there was no prospect of success in her intended appeal.
THIS APPLICATION
10. By a summons taken out on 24 March 2023, the Applicant applied for an extension of time to appeal against the Judge’s order of 23 March 2023.
11. In her supporting affirmation filed on the same date, she said that she understood there was a good ground of appeal which was not necessarily considered at the stage of applying for leave to apply for judicial review, but failed to identify what that ground may be.
12. In her written submissions dated 11 April 2023, the Applicant sets out some general principles of law relating to non-refoulement claims, but fails to explain how they are relevant or applicable to her situation.
13. By a letter to the Court and the Department of Justice dated 26 June 2023, the Applicant requested to “close” her case, apparently because her “problem” in her home country had been resolved and it was safe for her to go back to India. Notwithstanding such request, it is the practice of this Court to consider and deal with the application on its merits.
DISCUSSION
14. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.
15. In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
16. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
17. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).
18. Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
19. The Applicant has failed to identify or show any error in the Judge’s decision of 11 November 2022, and has failed to raise any viable ground of appeal against the Order.
20. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.
DISPOSITION
21. The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 24 March 2023 is dismissed.
(Godfrey Lam)
Justice of Appeal
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(Anderson Chow)
Justice of Appeal
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The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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