RITA BUDIARTI v. TORTURE CLAIMS APPEAL BOARD

CAMP 570/2021, [2023] HKCA 1000

On Appeal From [2021] HKCFI 1478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 570 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 87 OF 2021)

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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 Bruno Chan (“Judge”) dated 25 May 2021 refusing to extend time for applying for leave to apply for judicial review and dismissing the applicant’s application for leave to apply for judicial review.  The intended judicial review was sought against the decision of the Torture Claims Appeal Board (“Board”) dated 25 April 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 15 March 2018 rejecting her non-refoulement claim.

Background

2.  The applicant is a national of Indonesia, born in 1983.  She started working as a domestic helper in Hong Kong in January 2014.  Her last employment contract was terminated prematurely on 14 February 2017.  She was arrested for theft on that day.  The applicant had overstayed her permission to remain in Hong Kong since 1 March 2017.  On 23 March 2017, she was convicted of theft and sentenced to 2 weeks’ imprisonment suspended for 12 months.  On 2 May 2017, she lodged her non-refoulement claim, claiming that if she returned to Indonesia, her life would be endangered by her husband and she would be discriminated against or even harmed by her family and the Muslim community, as she had become a lesbian since coming to Hong Kong.  The details of her claim are set out in paragraphs 6.6 to 6.27 of the Director’s decision dated 15 March 2018.

3.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, torture risk,[1] BOR 3 risk,[2] persecution risk,[3] and BOR 2 risk.[4]  By notice of decision dated 15 March 2018, the Director rejected the applicant’s claim for non-refoulement protection. 

4.  The applicant appealed to the Board against the decision of the Director.  The Board held a hearing on 12 December 2018, at which the applicant gave oral testimony.  The Board noted that the applicant only made a non-refoulement claim after her arrest and considered that fact detrimental to her credibility.  The Board also considered that the number and nature of inconsistencies and contradictions in the applicant’s evidence were sufficiently serious to undermine the reliability of her story.  There was also no reliable evidence to show that the applicant’s husband, with whom she had lost contact, would still pursue her to harm her or that she would suffer physical harm of the requisite severity from his hands.  As to the applicant’s sexual orientation as a lesbian (which the Board was prepared to accept), the Board considered that rejection by the applicant’s family would not of itself constitute persecution.  Same-sex relations in private among consenting adults were not criminalised under Indonesian law.  As the applicant herself confirmed to the Board, she intended to live discreetly as a lesbian upon her return to Indonesia, with no intention of taking part in any LGBTI social movement.  As such the Board was not satisfied that she would be subjected to persecution upon her return.  The Board found that there would be adequate state protection available to the applicant if she was repatriated.  The Board also considered, in case it was wrong on its assessment of the risks faced by the applicant, that she could safely relocate within Indonesia to places such as Jakarta and Surabaya.  Accordingly, in its decision dated 25 April 2019, the Board concluded that the applicant’s claim failed in relation to all applicable grounds and dismissed her appeal and affirmed the Director’s decision.

The Judge’s decisions in the court below

5.  On 26 January 2021, long after the three-month’s time limit prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) had expired, 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 that Form the applicant stated that she believed the Director’s and Board’s decisions were Wednesbury unreasonable and not fair and that her right to life should be protected as against extra-judicial killings which she might face if she returned to Indonesia.

6.  The Judge held a hearing on 1 April 2021.  The applicant attended but she had nothing to add to the documents filed.  When asked why she had delayed in applying for leave for judicial review, she said a friend told her that if she went to court she would be detained again.  The applicant confirmed in court her address.  On 25 May 2021 the Judge issued his decision, refusing to extend time or to grant leave to apply for judicial review.  The reasons were set out at [11] – [18] of the Form CALL-1 as follows:

“ 11. By then the Applicant was however seriously out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date 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 25 July 2019, the Applicant was therefore more than 17 months 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 HKCA 393.

13. In the Applicant’s case, a delay of more than 17 months must be considered as extremely substantial and excessive, for which she did not provide any explanation in her supporting affirmation in which she claimed to have been detained at the Castle Peak Bay Immigration Centre (“CIC”), but the fact that she was able to make her application from there and also filed her affirmation in support shows that she was able to receive legal assistance while at CIC, and as the record shows that the Board’s decision was sent on the same day to her last reported address without being returned through undelivered post, and in the absence of any further details as to when she was being detained at CIC, I do not find any good reason for her such serious delay with her intended challenge.

14. As for the merits, if any, of her intended application, as noted above the Applicant did not provide any particulars or elaboration either in her affirmation or at the hearing of her application as to why she complains that the decision is unfair or unreasonable, and that on the facts of her own case and in the light of the scope and threshold of a BOR 2 claim, there is in my judgment simply no room for engaging the BOR 2 ground, as correctly found by the Board.

15. Given the Applicant’s own evidence that she intends to live discreetly as a lesbian if returned to Indonesia, and that the Adjudicator has adopted the correct approach in the Board’s decision ([52] – [53]) as laid down in HJ (Iran) [2010] UKSC 31 in assessing persecution risk in the Applicant’s situation in Indonesia together with the relevant COI, I do not find any error of law or procedural unfairness in the Board’s decision, nor do I find any merits in the Applicant’s intended application.

16. 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.

17. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts 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.

18. 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.”

7.  The Form stated that it was sent to the applicant on 25 May 2021.  There is also on file a copy of a cover letter to the applicant at the address she confirmed dated 25 May 2021.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court, but took out a summons on 21 June 2021 to seek an extension of time to appeal against the decision of the Judge, stating that she did not receive the order within a reasonable period.  In the accompanying affirmation, the applicant said she received a phone call from her immigration officer and went to the High Court on 18 June 2021 and only then got the Judge’s decision.  She explained that as an uneducated person without knowledge of the law or procedures, she had no choice but to take advice from friends.  She said that having taken legal advice, she understood that there was a good ground of appeal that because of her own oversight, had not necessarily been considered at the stage of the application for leave for judicial review, and that the merits of this ground were sufficient to justify allowing her to appeal out of time.  She did not, however, identify this ground of appeal.  She said the Director and Board rejected her claim without any proper inquiry and without carefully understanding her situation and gave many unacceptable and inexplicable grounds for rejecting her claim.  Again, she did not identify those grounds.

8.  The Judge held another hearing on 24 November 2021.  The applicant attended and explained that she did not receive the decision in the mail.  She said there was nothing she wished to add to the documents submitted for her application.  In his written decision dated 8 December 2021, the Judge recorded that the court’s decision was sent by post to the applicant on the date it was issued, and did not accept the applicant had established any good reason for her delay.  But more importantly, the Judge said that the applicant had failed to put forward any proper ground of appeal or point out any error in the Judge’s decision.  For these reasons, the Judge did not see any prospect of success in the intended appeal and decided to refuse to extend time.

The renewed application before this Court

9.  By summons filed on 20 December 2021, the applicant seeks an extension of time from this court for her to appeal against the decision of the Judge refusing to grant leave for judicial review.  She did not either in the summons or the accompanying affirmation set out any intended grounds of appeal against the Judge’s decision.

10.  In her written submissions lodged subsequently, the applicant stated that her enemies in Indonesia wanted to kill her and she was totally helpless there.  She said it was very unreasonable for the Director and the Board to reject her claim.

11.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  As the Judge stated, the decision was sent to the address the applicant provided to the court without being returned undelivered.  Even if the applicant did not receive it as she said, that would not be a reason entitling her to an extension of time.  In exercising the court’s discretion to extend time, the merits of the intended appeal is an important consideration.

13.  In that connection it is necessary for the applicant to understand that judicial review is not a further avenue for appeal from the Board.  Under the law, the Director and the Board are the decision-makers on the merits of her non-refoulement claim.  The court’s jurisdiction in judicial review is supervisory in relation to compliance with the law.  An appeal to the Court of Appeal is not a further opportunity to re-argue the non-refoulement claim.  It is incumbent upon an appellant to identify and establish proper grounds of appeal showing reviewable errors in the judge’s decision.

14.  In the present case, the Board found the applicant’s evidence unreliable and did not accept her claims in relation to the risks from her husband.  It was also not satisfied that there would be risks of the requisite level arising from her sexual orientation.  In any event, the Board found that there was state protection available and that internal relocation was a viable option.  These are conclusions that the Board, as the primary decision-maker, was entitled to reach, for the reasons it had given in its 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, and irrationality in the ultimate decision.  The applicant has failed to establish any such public law ground.

15.  The applicant has also failed to show how the Judge has erred in refusing to grant leave for judicial review.  She has wholly failed to put forward any viable ground of appeal against the Judge’s decision.  Having considered the materials available, we share the Judge’s view that there is no reasonably arguable ground for judicial review. 

16.  We do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The applicant’s summons is accordingly dismissed.

[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 of 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 and its 1967 Protocol.

[4]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).