SUSRIANAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 88/2022

[2022] HKCA 1645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 88 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 503 OF 2019)

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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.  This is a renewed application by the applicant for extension of time to appeal against the decision dated 28 December 2021 of Deputy High Court Judge K W Lung refusing to grant leave to her to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The matter arose in this way.

2.  The applicant is a national of Indonesia. She is 40 years old. She first arrived in Hong Kong to work as a domestic helper in 2002. She finished her contract and returned to Indonesia. She returned to Hong Kong again to work as a domestic helper on 3 January 2005, but her employment contract was prematurely terminated on 5 June 2005. She subsequently overstayed and was arrested by the police on 13 July 2010.

3.  The applicant’s claim for non‑refoulement protection was made on the basis that she would be harmed or killed by a creditor named Sukarno from whom her family had borrowed money, and by fundamentalist groups in her area because she had sexual relationship with a man before marriage, which is prohibited by Muslims.

4.  The applicant had a chequered history with her non-refoulement claim. She initially made a torture claim under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment on 24 July 2010. This was rejected by the Director of Immigration (“the Director”) on 20 June 2012.

5.  On 13 June 2013, she applied for protection on the grounds of cruel, inhuman or degrading treatment or punishment. On 11 November 2014, she wrote to the Immigration Department (“the Department”) to withdraw all her non-refoulement claims in Hong Kong on the basis that it was safe for her to go back to Indonesia and she wanted to go back to her home country as soon as possible.

6.  On 4 December 2014, the applicant requested that her non-refoulement claim be re-opened because she had problems in her country again. On 26 May 2015, the Department received another written notice from her that she wished to cancel all her non-refoulement claims in Hong Kong, claiming it was safe for her to return to her home country. The Department informed the applicant by letter dated 17 June 2015 that her non-refoulement claim had been treated as withdrawn and no further action would be taken on her claim.

7.  The Department then received another written request from the applicant dated 20 August 2015 to re-open her non-refoulement claim, alleging that her life would be seriously threatened if she were to return to Indonesia. The Department informed the applicant by letter dated 18 September 2015 that a decision was made not to re-open her non-refoulement claim.

8.  On 5 October 2015, the applicant filed an appeal to the Board against the decision made by the Department dated 18 September 2015. Her application for late filing of her appeal was refused by the Board on 11 December 2015.

9.  On 12 January 2017, the applicant wrote to the Department making a claim for non-refoulement on grounds of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. She provided additional information and evidence on her claim on 6 February 2017. The Department received a completed Non-refoulement Claim Form dated 31 August 2017 on behalf of the applicant through the Duty Lawyer Service.

10.  The applicant’s claim was rejected by the Director on all applicable grounds on 22 September 2017. She lodged an appeal against the decision of the Director to the Board on 3 October 2017 and attended the hearing before the Board on 27 April and 4 May 2018. Her appeal was dismissed by the Board on 27 July 2018.

11.  She filed a Form 86 on 21 February 2019 to apply for judicial review against the Board’s decision. On 28 December 2021, DHCJ Lung refused to grant leave to seek judicial review against the Board’s decision.

12.  On 3 March 2022, the applicant’s application for extension of time to appeal against the judge’s decision was dismissed by the judge, who found no reasonable prospect of success in the intended appeal[2].

13.  On 12 April 2022, the applicant filed the present summons with the Court of Appeal with her affirmation in support. She sought to appeal against the judge’s order of 3 March 2022 and to appeal further to pursue her non-refoulement claim. This application should be treated as a renewed application for leave to appeal out of time against the judge’s decision dated 28 December 2021 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§ 3 to 8).

The decisions of the Director and the Board

14.  By a Notice of Decision dated 22 September 2017, the Director rejected the applicant’s claim on torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

15.  The applicant appealed against the Director’s decision to the Board and attended the hearing before the Board on 27 April 2018 and 4 May 2018. The Board concluded that she was not an entirely truthful witness and has either fabricated or embellished her claims, particularly in regard to the inconsistency between her written statements and her oral evidence in relation to the debt owed to Sukarno. The Board also did not accept her evidence in regard to her claim that she has no family to go to if she were to return to Indonesia, and questioned the veracity of her evidence particularly regarding her claim of being coerced to work in a brothel which she failed to mention in her initial application to the Department in 2014.

16.  The Board found that the debt owed to Sukarno is the reason why the applicant does not wish to return home, in that the applicant does not want to continue to work to pay off her family’s debt. An additional factor is her current relationship with her partner, who is a Pakistani national and who may have difficulty travelling to Indonesia due to his health issues requiring ongoing treatment, plus the issue of custody of his child who resides in Hong Kong.

17.  For the above reasons, based on the gaps, inconsistencies and other problems with the evidence, the Board rejected the applicant’s claims in their entirety. Overall the Board found that the applicant would not be at risk of any harm and does not consider there are substantial grounds for believing that she would face any of the proscribed forms of harm should she return to Indonesia. The Board therefore dismissed the appeal on 27 July 2018.

The intended judicial review and the judge’s decision

18.  The applicant filed a Form 86 and an affirmation on 21 February 2019 for leave to apply for judicial review against the decisions of the Director and the Board, but did not set out any reason in support of her application.

19.  The judge considered TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 at §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1), noting that the court would not usurp the fact finding power vested in the Director and the Board. He referred to Re: Kartini [2019] HKCA 1022 at §13(1), which stated that the court would not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

20.  The judge was of the view that there were no errors of law or procedural unfairness in the Board’s Decision, and the findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational. As the applicant failed to show any realistic prospect of success in her proposed judicial review, her application for extension of time to apply for leave for judicial review was dismissed on 28 December 2021.

Grounds of intended appeal

21.  The grounds of intended appeal stated in the applicant’s submissions are as follows:

(1)  She does not think her case had been determined fairly.

(2)  She lacked legal representation for BOR 2 assessment.

(3)  She was unaware of her rights and the definitions with regard to BOR 2. The lack of legal representation meant that she had no understanding of the process or the reasons for rejecting her claim.

(4)  There was breach of procedural fairness on part of the putative respondents.

(5)  The authorities were discriminatory towards non-refoulement claimants.

Analysis and disposition

22.  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.

23.  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 28 December 2021. The applicant took out a summons for leave to appeal out of time at the court below on 24 January 2022. She was late by 13 days.

24.  The applicant explained in her supporting affirmation filed with the court below that she was late because she does not know English or the court procedures, and thus was unaware of the deadline. However, the applicant’s affirmations and written submissions have all been in English. This shows that either the applicant herself is conversant in English, or she had access to language assistance.

25.  Even if the court is minded to accept her explanation for the delay, the court would still assess whether she can show there is reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

26.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

27.  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. 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.

28.  In the present application, the applicant has not put forward any grounds to reverse the judge’s decision. She has not provided additional facts in respect of BOR 2 risk, and there was no procedural unfairness. The applicant does not have any reasonably arguable grounds to challenge the decision of the judge. Her contentions that her claim had been determined unfairly or that there was a lack of procedural fairness and/or discrimination are unsubstantiated and without basis.

29.  As to the lack of legal representation, an applicant of a non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings, and the applicant had already received legal representation up to the Director’s decision on 22 September 2017.

30.  The applicant has failed to show that she has any or any reasonable prospect of success in her intended appeal. We decline to exercise our discretion to grant extension of time to appeal against the judge’s decision of 28 December 2021. We dismiss the summons filed on 12 April 2022.