YUYUN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULMENT CLAIMS PETITION OFFICE

CAMP 234/2022

[2022] HKCA 1812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 234 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2781 OF 2018)

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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 7 July 2022, the Applicants took out a summons to apply for an extension time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 2 March 2022 refusing to grant them leave to apply for judicial review (“the Order”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 3 October 2018, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 28 February 2018 rejecting the Applicants’ non-refoulement claims.

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 Applicants are nationals of Indonesia. The 1^st Applicant entered Hong Kong as a foreign domestic helper on 23 August 2007. Her employment contract was terminated prematurely on 3 May 2008. She did not depart after the expiry of her limit of stay, and overstayed instead. On 21 December 2009, she gave birth to the 2^nd Applicant. On 2 March 2010, she lodged a torture claim[1] on her own behalf. On 14 May 2012, she further lodged a torture claim on behalf of the 2^nd Applicant. On 22 November 2012, both torture claims were refused by the Director. On 9 January 2013, the Applicants’ appeals/petitions against the refusal of their torture claims were rejected. On 26 February 2014, through their legal representative, the 1^st Applicant lodged non-refoulement claims for herself and on behalf of the 2^nd Applicant, alleging that they would be harmed or killed by the 1^st Applicant’s stepfather due to some family disputes. Details of the Applicants’ claims have been summarised by the Judge at §§1-6 of the CALL-1 Form ([2022] HKCFI 582).

5.  The Director was informed that the applicants’ non-refoulement claims were a joint application. Thus, the 2^nd applicant’s claim was assessed as part of the 1^st applicant’s claim. By a Notice of Decision dated 28 February 2018, the Director rejected the Applicant’s non-refoulement claims on the following applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.  The Applicants appealed the Director’s Decision to the Board. On 3 October 2018, the Board dismissed the Applicants’ appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §10 of the CALL-1 Form, as follows:

“The Board made the following findings: (i) the 1^st applicant only suffered bruises in the fight with the stepfather; (ii) she failed to provide any proof that her mother would scold her for religious reasons; and (iii) state protection and internal relocation were both available to the 1^st applicant. Thus, there were no substantial grounds for believing that there would be real risk of harm of her being harmed or killed by the stepfather [19]. Further, there was no state involvement [21]. In assessing the individual grounds, the Board also found that the 1^st applicant did not file any evidence in relation to the death sentence and genocide and thus BOR2 risk was irrelevant to the 1^st applicant’s case [28]. For these reasons, the Board rejected the 1^st applicant’s claim and thus dismissed the applicants’ appeals.”

7.  On 6 December 2018, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

THE JUDGE’S DECISION

8.  On 2 March 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicants leave to apply for judicial review for the following reasons:

“[13] 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 applicants’ 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 CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

…

[21] The Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 set out the principles for treatment of non-refoulement claims by children in paragraph 34…

[24] The 2^nd applicant’s case is based on the 1^st applicant’s facts. The Board found that there were no substantial grounds for believing that there would be real risk of harm of her being harmed or killed by the stepfather [19]. It can therefore be seen that 2^nd applicant will not be subjected to any real risk of harm of being killed by the 1^st applicant’s step-father.

[25] The applicants were legally represented at the screening stage before the immigration officer. There was no child specific issue submitted to the immigration officer for his consideration. Under the high standards of fairness, the immigration officer had no duty to speculate any child specific issues under the circumstances. See Re: RS case above.

…

[28] However, the Board had found that the applicants were not subjected to the risk of harm of being killed by the 1^st applicant’s step-father. Furthermore, the state was not involved and there should be state protection for the applicants. Though the Board might have made an error in the interpretation of BOR2, I consider that this issue will not give a realistic prospect of success in the applicants’ intended application for judicial review as there was no factual evidence in support of the applicants’ case in relation to BOR2 risk.

[29] In accordance with Peter Po Fun Chan (2007) 10 HKCFAR 676 §14, I consider that leave should not be granted to the applicants to apply for judicial review of the Board’s Decision.”

9.  On 10 June 2022, the Judge refused the Applicants’ application by a summons dated 21 April 2022 for an extension of time to appeal against the Order ([2022] HKCFI 1524).

THIS APPLICATION

10.  By a summons taken out on 7 July 2022, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Order. In her supporting affirmation filed on the same date, the 1^st Applicant merely stated as follows:

“Affirmation for extension of time to appeal. The High Court dismissed my leave and did not consider my application for extension of time.”

11.  The Applicants have failed to lodge any written submissions contrary to the directions given by the Registrar of Civil Appeals on 7 October 2022.

DISCUSSION

12.  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.

13.  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.

14.  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)).

15.  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 are 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.

16.  In so far as the 1^st Applicant’s application is concerned, she has failed to point to or substantiate any alleged error of the Judge in his decision of 2 March 2022, and has failed to raise any viable ground of appeal against the Order.

17.  In relation to the 2^nd Applicant’s application, the Court’s approach in considering a minor’s claim for non-refoulement protection is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33.

18.  In the present case, the 2^nd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim. The Board, after considering the evidence in the case, rejected the 1^st Applicant’s claim on the facts, and further found that state protection and internal relocation were available to her. There was no factual basis which could support the 2^nd Applicant’s non-refoulement claim on any of the applicable grounds.

19.  We do not see any material that may give rise to a concern that there might be non‑refoulement grounds that related specifically only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on his behalf before the Board.

20.  There is no prospect of success in the Applicants’ intended appeal.

DISPOSITION

21.  The application for extension of time to appeal is refused, and the Applicants’ summons of 7 July 2022 is dismissed.

22.  For the avoidance of doubt, the non-compliance with Order 80 rule 2 in these proceedings is treated as a mere irregularity without rendering the 2^nd Applicant’s application a nullity.