RE RAHMAT SAEPULAH

CAMP 259/2021

[2022] HKCA 13

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 259 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2299 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  By a summons dated 19 July 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 29 June 2021 refusing the applicant’s application for an extension of time to appeal ([2021] HKCFI 1807)  (“EOT Decision”)  against the Deputy Judge’s previous order dated 19 March 2021, by which the Deputy Judge dismissing his application for leave to apply for judicial review ([2021] HKCFI 741)  (“Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 5 October 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 4 June 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court (Cap 4A)  (“the RHC”).

Background

4.  The applicant is a national of Indonesia.  He entered Hong Kong as a visitor on 27 December 2015 and was allowed to stay until 26 January 2016.  He did not depart and overstayed and on 27 January 2016, he surrendered himself to the Immigration Department.  By the written representations dated 20 June 2016 and 9 April 2018, the applicant lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by his creditor for failing to repay his loan.  Details of the applicant’s claim were summarised by the Deputy Judge at [2] - [4] of the Leave Decision.

5.  By a Notice of Decision dated 4 June 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  By a Notice of Appeal dated 7 June 2018, the applicant appealed against the Director’s Decision to the Board.  He attended an oral hearing before the Board on 6 September 2018 and gave evidence.  The Board dismissed his appeal on 5 October 2018 and confirmed the Director’s Decision.  The Board found on the evidence that the applicant’s dispute with his creditor was a private monetary dispute.  Having assessed the evidence, the Board also considered that state / police protection and internal relocation would be available to him upon his return to Indonesia and the applicant failed to establish his claim on all applicable grounds.

The Leave Decision

7.  On 22 October 2018, the applicant filed a Form 86 with a supporting affirmation for leave to apply for judicial review against the Director’s Decision and the Board’s Decision.  The applicant appeared in person at the hearing of the leave application before the Deputy Judge on 24 November 2020.  An Indonesian interpreter was present to provide language assistance.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“9.  On 22 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in that both his screening process before the Director and the Board were conducted in Chinese despite his request that they be conducted in English and that their decisions were also written in Chinese which he was unable to read or understand;

(2)  That he had been detained at the Castle Peak Bay Immigration Centre (‘CIC’)  and that the Adjudicator failed to give him sufficient chance to arrange relevant evidence for his claim as well as his appeal;

(3)  That both the Director and the Adjudicator failed to take into account or to give sufficient weight to the fact that the state and public officials of the Indonesia were unable to provide reasonable protection to its citizens under the duty of due diligence;

(4)  That the Director and the Adjudicator failed to take into account of those listed COI which supported his aversions that the police in his home country would not be able to protect and instead relied on COI which suited their preconceived conclusion which was a clear case of unfair attitude shown by then in itself enough to render their decisions void; and

(5)  That the Director and the Board failed to attain high standard of fairness required by the Wednesbury test in their decisions which should be considered as unreasonable in the scope of public law.

10.  For the Applicant’s complaints under Ground (1)  of procedural unfairness that his process before the Director and the Board were conducted in Chinese and that their decisions were also written in Chinese which he is unable to read or understand, I accept that he may indeed not be able to do so, as he did indicate in his NCF that other than his native language of Indonesia that he can read a little English but no mention of any proficiency in Chinese.

11.  The fact is that he was legally represented by lawyer from DLS throughout his process before the Director when his NCF was prepared in Chinese by his lawyer which was probably the reason why his screening interview before the immigration officer was also conducted in Chinese as well as the Director’s decision, but of which no doubt must have been explained and interpreted by his lawyer to him, while the record also shows that in his appeal before the Board he was assisted by an Indonesian interpreter throughout his oral hearing during which he was able to give evidence and make his submissions without problem, and that he never raised any problem with interpretation or requested that the hearing be conducted in English instead.

12.  In fact, even up to now in his present application or during his hearing before me, the Applicant never raised or advanced any argument or produce any evidence that his claim might had been misinterpreted by the interpreter or misunderstood by the Director or the Board, and that the basis of his claim had always been death threats from his creditor over the default of his loan repayment. As such and in the circumstances, I do not find any basis or merit in this complaint of the Applicant.

13.   As for his remaining 4 grounds, they all appear to me just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in assessing his claim, while as noted above the Board did conduct an oral hearing for his appeal during which he was able to give evidence and answer questions raised of his claim with the assistance of an interpreter without any difficulty. In the premises I do not find any basis or merits in any of these grounds.

14.  The same can be said of the additional grounds in his written submissions dated 7 April 2020 which appear to me from some pro forma commonly used in these types of applications but of no relevancy at all to either the facts or basis of the Applicant’s claim other than the complaint of not being provided with the hearing bundle earlier for his appeal to the Board, but as already noted above, the Applicant never raised any issue with it during his oral hearing before the Board, nor did he request any adjournment of the hearing to enable him to have further time to prepare for his appeal. As such I do not find any of them reasonably arguable for his intended challenge either.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Indonesia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

17.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 14 April 2021, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was seven days late with his intended appeal.  In his supporting affirmation of the same date, he only asserted he did not understand the Court procedure because of his language handicap and he had limited financial resources.  His application was heard before the Deputy Judge on 17 June 2021 with the assistance of an Indonesian interpreter.

11.  By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal.  Although the Deputy Judge considered that a delay of seven days might not be regarded as significant, in the absence of any error in the Leave Decision being clearly and properly identified by the applicant, the Deputy Judge considered that there was no prospect of success in his intended appeal and that it would be futile to extend time for what appeared to be a hopeless appeal.  Accordingly, the EOT Summons was dismissed.

The Present Application

12.  By a summons dated 19 July 2021, the applicant applied for leave to appeal against the EOT Decision.  In his supporting affirmation of the same date, he stated:

“I am totally disagree with the decision of authorities and I opposed the decision made by authorities This is just because I do not know English and my basic rights for me is not easy to appeal against because of my financial condition I cannot get any legal representation to do it proper for me. I request for an oral hearing for this application.” [sic]

13.  In his written submissions lodged on 2 August 2021, the applicant requested for an oral hearing as he could not lodge proper written submission because he was unrepresented and because of his language problem.  The applicant further complained of the lack of legal representation and language assistance for his BOR2 assessment before the Director and that the Board’s Decision had not been translated to him via an interpreter.  He also complained without giving any specific particulars that all the acts of the authorities had been highly discriminatory and unfair to him.

Discussion

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  Although the applicant’s delay of seven days may not be regarded as significant, the prospect of success of the intended appeal remains important and the Court will not grant extension for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702 at [19] and Re Rahman Wasif [2019] HKCA 299 at [13].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  It is noted that the applicant’s complaints as stated in his supporting affirmation and in his written submissions in the present application were directed at the Director and the Board and he failed to point out with specific particulars any errors made by the Deputy Judge in the Leave Decision.  As such, his allegations are simply not valid grounds of appeal and his intended appeal must fail on this basis alone.

19.  In any event, his contentions are without merit and cannot stand.

20.  It is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  It is also well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].

21.  Insofar as his allegation on the lack of legal and language assistance in relation to his BOR2 assessment before the Director is concerned, it is further noted that the applicant’s non-refoulement claim on the basis of BOR2 risk was screened and assessed by the Director at the same time together with the other applicable grounds including, torture risk, BOR3 risk and prosecution risk.  The applicant was provided with legal and language assistance throughout the Director’s assessment of his non-refoulement claim.  It is also noted that the Director’s Decision rejecting his non-refoulement claim was sent to the applicant’s then legal representatives.  As such, his contentions in relation to the lack of legal and language assistance in relation to his BOR2 assessment before the Director are entirely misplaced.  Insofar as the proceedings before the Board is concerned, as noted by the Deputy Judge, the applicant was assisted by an Indonesian interpreter throughout the oral hearing before the Board and he did not raise any problem with interpretation or request that the hearing be conducted in English.

22.  Regarding the applicant’s allegation that all the acts of the authorities had been highly discriminatory and unfair to him, this is only a vague and bare allegation without any specific particulars or elaboration by the applicant.  It does not constitute a viable ground of appeal.

23.  In our view, the assessment of his non-refoulement claim by the Board and the consideration of his application for leave to apply for judicial review by the Deputy Judge were thorough and fair.  We consider that a high standard of fairness has been achieved in the overall process of the determination of his non-refoulement claim.  

24.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the summons dated 19 July 2021 dismissed.