HETY KUSENDANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 67 /2020

[2020] HKCA 840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 67 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 200 OF 2018)

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J U D G M E N T

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

1.  On 16 October 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim^[1].

2.  The applicant issued a summons on 7 November 2019 seeking leave to appeal against that decision out of time, as the 14-day period to file her appeal ended on 30 October 2019.  Her summons was heard by the judge on 19 December 2019.  On 18 June 2020, the judge refused to grant leave to the applicant to appeal out of time as the applicant failed to show she had any prospect of success in her intended appeal^[2].

3.  On 29 June 2020, the applicant took out a renewed application in the Court of Appeal for leave to appeal out of time.

4.  The applicant is a national of Indonesia.  She is 36 years old.  She entered Hong Kong on 23 September 2013 with permission to work as a foreign domestic helper.  She was arrested by the police on 18 August 2015 for taking up other employment without permission for which she was convicted and sentenced to imprisonment for two months.  She raised a non-refoulement claim on 30 May 2016.  It was made on the basis that she would be harmed or killed by her sister’s creditor for failing to repay loan on behalf of her sister and/or by the Muslim majority in her home village for being a Christian.  

The Director’s decision

5.  By a Notice of Decision dated 31 October 2016, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk^[3], BOR 3 risk^[4], torture risk^[5] and persecution risk.^[6]

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board.  A hearing was conducted on 21 August 2017.

7.  The Board dismissed the applicant’s appeal on 23 November 2017 as she had never been subjected to any physical violence at the hands of or at the behest of the loan shark and she had also failed to establish there is a real and substantial risk of her being subjected to persecution on account of her religion should she return to Indonesia.  The applicant also made no claim or allegation that she would be at risk of death from the Indonesian government if refouled.  The Board further considered that reasonable state protection would be available to the applicant in Indonesia and internal relocation is a viable option.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 9 February 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  She did not provide any grounds for judicial review.  She only reiterated her claim of fear that her life would be in danger upon her return to Indonesia in her skeleton submissions.

The judge’s decision

9.  The judge held that the applicant failed to identify any error of law or procedural unfairness in the decisions of the Director and the Board.  Therefore, on 16 October 2019, the judge refused to grant leave to the applicant as her intended application for judicial review does not have any prospect of success.

10.  On 7 November 2019, the applicant sought an extension of time to appeal against the decision of 16 October 2019.  The judge refused her application on 18 June 2020 as there is no prospect of success in the intended appeal.

Grounds of the intended appeal

11.  In the applicant’s written submissions, she stressed that high standards of fairness are required in the determination of a torture claim and submitted that the adjudicator had acted in a procedurally unfair manner without properly assessing her credibility^[7]. 

Analysis

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The judge’s order was made on 16 October 2019.  The applicant took out a summons on 7 November 2019 and was late by eight days.

14.  The applicant explained before the judge at the hearing on 19 December 2019 that she had not received the decision and was only told about it when she reported to the Immigration Department on 29 October 2019.  Given the short delay in the present case, her delay may be considered as excusable.  In these circumstances, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[8].

15.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Assessment of evidence and Country of Origin Information 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.

17.  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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  The applicant’s ground of appeal was not raised in her previous leave application.  The Court of Appeal would not entertain such new ground as an appeal is not the occasion for an application to introduce new grounds after the original grounds had failed in the court below^[9].

19.  In any event, her ground is just bare assertion without particulars and evidence in support.  The applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

20.  For the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore refuse to extend time to appeal against the judge’s decision and dismiss the summons filed on 29 June 2020.