SANTI DIANA SARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 179/2020

[2021] HKCA 277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 179 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 141 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 14 September 2018, 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 Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 24 June 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file her appeal had ended on 28 September 2018.  The application was heard by Deputy High Court Judge Bruno Chan on 27 August 2020 and dismissed on 16 September 2020[2].

3.  On 28 September 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge's decision of 14 September 2018.

4.  The applicant is a national of Indonesia.  She is 33 years old.  She last arrived in Hong Kong on 29 November 2014 with permission to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 11 December 2014.  She overstayed and was arrested by the police on 6 August 2015.  She lodged a non-refoulement claim on 31 August 2015 on the basis that her life would be endangered by her father and his creditor if she returns to Indonesia.  On 9 November 2015, she was convicted of the offence of taking up employment while being a person in respect of whom a removal order is in force and breach of suspended sentence.  She was sentenced to imprisonment of 15 months 4 weeks in total.

The Director’s decisions

5.  By a Notice of Decision dated 22 August 2016, the Director rejected the applicant’s claim on BOR 3 risk[3], torture risk[4] and persecution risk[5]. 

6.  By a Notice of Further Decision dated 20 October 2017, the Director rejected the applicant’s claim on BOR 2 risk[6] in the absence of response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim. 

The Board’s decision

7.  The applicant appealed against the Director’s decisions to the Board.  The applicant was absent at the hearing of the appeal scheduled before the Board on 7 November 2017 without providing any explanation for the absence.  Having considered, among other things, the fact that the applicant had returned to Indonesia in 2014 and stayed at her grandfather’s house knowing that her father would be present and there is no credible evidence to indicate that her father now owes money to anyone, the Board held the applicant has failed to establish she will face real risk of harm by her father or anyone else on the basis of the alleged loan.  The Board also found that the applicant could reasonably relocate to elsewhere in Indonesia should she wish to do so upon return.  Thus, the Board dismissed the applicant’s appeal on 12 January 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 31 January 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  She put forward the following grounds for her intended challenge:

(1)  procedural impropriety/unfairness in their failure to carry out sufficient research and inquiry into Country of Origin information (“COI”), or to conduct a critical analysis of the relevant COI or to provide any explanation for preferring certain COI over the others, and for cherry- picking COI to support their decisions;

(2)  procedural impropriety in the Board’s decision to deal with her appeal in her absence as she never received its notice of the oral hearing at her address already provided to the Board; 

(3)  procedural impropriety in the Board’s failure to consider her claim properly by unfairly criticizing her for making no mention of the attempted rape incident in her written representation and therefore doubting the truthfulness of such claim;

(4)  error/misdirection in law for failing to consider the psychological harm upon her as a result of the events stated in her claim including the death threats made against her; and

(5)  error/misdirection in law for failing to properly apply the guidelines of the UN Committee Against Tortures and improperly restricting their consideration as to whether reforms in Indonesia have shown signs of improvement and have become more effective.

The judge’s decision

9.  The applicant attended the hearing before DHCJ Bruno Chan on 9 August 2018.  Grounds (1), (4) and (5) were rejected by the judge as they are just broad and vague assertions without any particulars or specifics or elaboration.  As for ground (2), the judge considered that an oral hearing had been scheduled which the applicant failed to attend and she failed to show it was not her fault that the notice of hearing was not sent to her correct address.  The judge further assessed there is nothing amiss arising from the lack of an oral hearing before the Board.  The judge rejected ground (3) as it is factually incorrect and the applicant failed to identify any legal or factual error in this regard.  For all the above reasons, the judge dismissed the application on 14 September 2018.

Grounds of intended appeal

10.  The applicant stated her intended grounds of appeal in her written submissions which may be summarized as follows:

(1)  the Board and the Director failed to comply with their duty to make sufficient inquiries into COI and adopted a passive approach in contravention of the high standards of fairness;

(2)  they failed to take into account relevant considerations or took into account irrelevant considerations.

Analysis

11.  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.

12.  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 order was made on 14 September 2018.  The applicant took out a summons at the court below on 24 June 2020.  She was late by about 20 months[7].  The delay is very substantial.

13.  The applicant explained that she failed to file a notice of appeal within the prescribed time as she was not aware of the appeal system.  This is not a justifiable reason for such serious delay.

14.  As her delay is inexcusable, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

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.  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.

17.  The applicant’s grounds are just bare assertion without particulars or evidence in support.  She failed to identify any errors of law, any failure to take account of relevant matters already placed before the court or any other mistakes in the judge’s decision in refusing to grant leave to apply for judicial review. 

18.  As the applicant does not have any prospect of success in the intended appeal, we refuse to grant an extension of time to appeal and dismiss the summons she filed on 28 September 2020.

[1] [2018] HKCFI 2058

[2] [2020] HKCFI 2301

[3] This refers to 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.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[5] 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.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7] Exclusive of the court’s summer vacation.