RAJARAM RAZEENA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 102/2018

[2018] HKCA 795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 102 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 529 OF 2017)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Extension of time to appeal

1.  Deputy High Court Judge (‘DHCJ’) Bruno Chan on 8 June 2018 refused to grant the applicant leave to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) dated 16 June 2017.  The applicant now applies for extension of time to appeal against DHCJ Bruno Chan’s decision.  The application was filed on 9 July 2018, with an accompanying supporting affirmation.  Notwithstanding the directions of the Registrar of Civil Appeals dated 17 July 2018 and 10 August 2018, the applicant failed to lodge skeleton submissions by 28 August 2018.  This Court will now deal with the application on paper.

2)  Factual background

2.1  The applicant is a national of Sri Lanka who arrived in Hong Kong on 24 August 2006.  She remained in Hong Kong and overstayed since 24 May 2007.  She raised her torture claim on 14 March 2014, on the ground that if she was to return to Sri Lanka, she would be harmed or killed by her creditor, namely Gamini (‘GM’) and his followers because she had defaulted on her loan repayment. 

2.2  The applicant was born and raised in Sri Lanka, and married her husband in 2000.  They borrowed money to set up their home from GM, a wealthy man who was politically affiliated.  The applicant’s husband later could not afford certain repayments, and GM would either ask him to put up political signs, or have him beaten up.  The applicant’s husband would in turn beat up the applicant to vent his anger.  The applicant reported such domestic violence to the police but the police did not take further action.  In 2004, while the applicant and her husband were on their way home on a motorcycle they were struck by a van.  The applicant suspected it was the work of GM.  Later, GM’s wife would approach the applicant to make threats and demand repayment and even slap the applicant.  The applicant’s husband continued to abuse her.  The applicant again reported to the police, and the police simply warned him but took no further action.  In 2006, the applicant’s husband became more violent and poured kerosene over the applicant and tried to set her on fire.  With the help of one Ms. Kumari, the applicant was able to come to Hong Kong to work as a domestic helper.  The applicant’s husband died in Saudi Arabia on 29 July 2014.  The applicant’s sister told her that it was still too dangerous for her to go back to Sri Lanka.

3)  The Director’s Decision and the Director’s Further Decision                                    

3.1  The Director decided against the applicant’s non‑refoulement claim on 30 December 2015.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2  By a Further Decision of the Director dated 16 January 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant, and decided against the applicant.

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board on 12 January 2016.  The oral hearing was conducted on 24 January 2017.  The Board dismissed the applicant’s appeal on 16 June 2017.

5)  Decision of DHCJ Bruno Chan

5.  DHCJ Bruno Chan considered the applicant’s application for leave for judicial review, and found that neither the Form 86 nor the supporting affirmation contained any particulars or grounds for leave, save for stating that the applicant was not given time to explain her problem and that her life would be under threat if she was to return to Sri Lanka.  The Judge referred to TK v Jenkins [2013] 1 HKC 526 and held that the Court only plays a supervisory role in judicial review by reviewing the legality of the decision under public law and the fairness of the process by which the decision was made.  Having considered the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny, the Judge did not find any error of law or procedural unfairness in those decisions, or any failure to apply high standards of fairness in the applicant’s claim.  The applicant’s application for leave for judicial review was refused.

6)  The present application

6.1  The applicant’s summons of 9 July 2018 states in gist that DHCJ Bruno Chan rejected her application without holding an oral hearing.  It also states that she needed time to collect documents.

6.2  As for the content of the applicant’s supporting affirmation, as far as it could be understood, the applicant stated that it was unfair not to hold an oral hearing.  The applicant says that there are still problems in Sri Lanka and she needs time to submit supporting documents.  The applicant also says that her delay was because she has no knowledge of the appeal procedures.

7)  Legal principles

7.  In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

8)  Analysis

(1)    Length of delay and reasons for the delay

8.1  The deadline for the applicant to lodge her appeal against the decision of DHCJ Bruno Chan was 22 June 2018, being 14 days from 8 June 2018, see Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A.  The applicant made her application on 9 July 2018, which was a delay of 17 days.  The delay was not insubstantial.

8.2  The applicant’s explanation for the delay, namely, she has no knowledge of the appeal procedures, is not a satisfactory one.  If she is minded to lodge an appeal, it is incumbent upon her to find out the relevant procedure and time limit.

(2)    Prospect of the intended appeal

8.3  In any event, the most critical consideration is the prospect of the intended appeal.

8.4  On the applicant’s complaint that there was no oral hearing before DHCJ Bruno Chan, Order 53, rule 3(3) of the Rules of the High Court provides that a judge may determine an application for leave without a hearing, unless a hearing is requested in the Form 86.  The applicant did not request for an oral hearing in her Form 86 or supporting affirmation.  Given also that the Form 86 and supporting affirmation did not set out any substantial grounds for judicial review, no useful purpose would be served by holding an oral hearing.  Further, the applicant had not particularized what prejudice or unfairness has occasioned to her, such as what she would have put forward in support of her application had there been an oral hearing.  There is no merit in this complaint.

8.5  The applicant’s argument that she needed time to submit supporting documents is also not reasonably arguable.  The applicant lodged her notice of appeal to the Board on 12 January 2016.  The applicant’s oral hearing before the Board was on 24 January 2017.  The applicant had more than a year to submit any further supporting documents she wished to submit, but she did not.  Indeed, the applicant had expressly informed the Board that she did not have documents to submit.  Further, judicial review and appeal to the Court of Appeal is not the occasion for the applicant to submit further supporting documents.  The primary decision makers are the Director and the Board, not the Judge at the Court of First Instance or the Court of Appeal.  It is trite that due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot, without permission from the Court, rely on materials which have not been produced before the Board or the Director.

8.6  As for the applicant’s complaint that there are still problems in Sri Lanka, suffice to say that the Board has already assessed the level of risk of harm to the applicant if she were to return to her home country, having regard to the availability of internal relocation options.

8.7  We have said many times before, evaluation of risk of harm is primarily a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The Court will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment of the Board in the hope that the Court may consider the matter afresh in the absence of any legal error.  See : Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

9)  Disposition

9.1  For the reasons as aforesaid, there is no reasonably arguable basis to challenge the decision and reasons given by DHCJ Bruno Chan.

9.2  The intended appeal has no prospect of success.  It is futile to extend the time to appeal.  The application is therefore dismissed.

9.3  Since the application is totally without merit, we further make an order under Order 59, rule 2A(8) of the Rules of the High Court that the applicant may not request for our determination to be reconsidered at an oral hearing.