RE UMI SITI SURIFAH

CAMP 70/2020

[2021] HKCA 664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 70 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 2529/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung given on 19 July 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 25 October 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 26 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She last entered Hong Kong on 7 November 2008 to work as a foreign domestic helper.  She overstayed after her contract was terminated. She was arrested by the police and she lodged a torture claim on 9 March 2011. Her torture claim was dismissed on 27 April 2012 and her petition against the dismissal was refused on 31 May 2012.  On 28 April 2015 and 6 May 2015, she raised non-refoulement claims. 

3.  The applicant’s claim was based on threats from her husband and people in her village because of her extra-marital affair with her brother-in-law in 2008.  The details of the applicant’s claim have been summarised by the judge at [3] of the CALL-1 Form and [7] to [12] and [19] of the Board’s Decision of 25 October 2018.

4.  By a Notice of Decision dated 26 February 2018 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2] and the persecution risk[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 19 June 2018, the Board dismissed the appeal on 25 October 2018 (“Board’s Decision”).  

6.  At [52] to [54] of the Board’s Decision, the Board found that due to the lapse of time and the doubtful veracity of the allegation of blackmail in 2013 or 2014, the risk of the husband harming the applicant was low and she has failed to show any genuine and substantial risk of being subject to ill-treatment upon her return.  The Board was also satisfied at [79] that state protection would be available for the applicant and at [83] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a form 86 on 12 November 2018 which contained no ground for seeking relief.

8.  In her affirmation in support of the leave application dated 12 November 2018, the applicant advanced the following grounds for judicial review:

(a)  Lack of language and legal assistance after the Director’s Decision;

(b)  The lack of translation of the Board’s decision; and

(c)  The authorities failed to consider the situation in Indonesia and the underreporting of abuses to women and honour killings.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [24] of the CALL-1 form:

“ The Director’s Decision

11. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigation in the matter. The Board had considered her appeal and made its Decision.

12. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing.  For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

13. Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

14. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered that she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her. Her friend had explained the hearing bundle and the Board’s Decision to her.

16. I put the Board’s findings to her for her comments. She said that she was crying when she answered the Adjudicator’s questions and she was not clear about those questions. She said that she had told the Adjudicator about her problems. The Adjudicator had asked her if she needed a break or rest. She said no and asked the Adjudicator to continue with his questions.

17. I find that the Adjudicator had discharged his duties properly in the hearing.

18. It is obvious that as the Board rejected her evidence in support of her claim.

19. All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court.

20. Ground (1) does not stand as she is not entitled to free legal assistance at every stage of the proceedings. See Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 at [22].

21. Ground (2) fails as it is inconsistent with she said before this court

22. Ground (3) is irrelevant because the Board simply discredited her evidence. She has no factual basis in support of her claim.

23. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

24. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review.  Accordingly, I dismiss her application.”

Application for extension of time for leave to appeal

10.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 5 August 2019, the applicant sought leave to appeal out of time.  Her application was dismissed by the judge on 26 June 2020.

11.  By a summons dated 29 June 2020 the applicant renewed her application for an extension of time to appeal before this court.  In the affirmation in support of the same date, she stated that:

“ [the judge] was wrong in law in holding that there was no state acquiescence or involvement

[the judge] failed to provide detailed reason in support of his decision” 

12.  In her skeleton submission dated 23 October 2020, the applicant submitted that:

(d)  the Board failed to meet the high standard of fairness in that it had adopted a practice of not questioning the decisions of the Director, and had also failed to consider country of origin information; and

(e)  the Board failed to act fairly.

Discussion

13.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

14.  The grounds of appeal set out in the skeleton submission concern alleged errors on the part of the Board, but do not engage with the reasons given by the judge for rejecting her complaints against the Board.  As this Court has often stated, an appeal is not a further opportunity to regurgitate what had been advanced but rejected in the court below.  In an appeal to this court, it is necessary for the applicant to identify errors made by the judge.  The skeleton submissions do not provide any viable grounds of appeal in this respect. 

15.  As for the grounds set out in the applicant’s affirmation dated 29 June 2020, we note that the applicant did not rely on state acquiescence in her application for leave for judicial review.  The judge was therefore not required to consider this ground.  On the facts of this case, as the applicant had not sought help from the public authority in Indonesia, there is no basis for invoking the concept of state acquiescence. 

16.  The judge has given reasons for his decision in [11] – [24] of CALL-1 form.  In our view, it may not be entirely accurate for the judge to say that the Board had rejected or discredited her evidence.  The Board did not appear to have reject her evidence regarding her adultery or the circumstances leading to her escape.  However, the Board did make an assessment of risk by reference to the lapse of time (which the Board was entitled to) and doubting the veracity of the claim of blackmail (which the Board was also entitled to).  Thus, in the absence of any valid public law ground to challenge these assessments by the Board (and the applicant had advanced none), the judge was correct in holding that her judicial review had no prospect of success.

17.  The grounds of appeal in the affirmation are therefore without merit.

18.  As we do not see any prospect of success in the intended appeal, we will not grant extension of time for a hopeless appeal. The summons of 29 June 2020 is dismissed accordingly.