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

CAMP 271/2023, [2024] HKCA 303

On An Intended Appeal From [2023] HKCFI 1536 &

[2023] HKCFI 1881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 271 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 954 OF 2019)

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J U D G M E N T

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

1.  On 4 August 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 15 June 2023 (“the Order”) refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 14 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 December 2017 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents before us, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 1A, Rule 4 and Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Indonesia. She entered Hong Kong as a foreign domestic helper on 21 April 2012, and was permitted to remain until 21 April 2014 or two weeks after the termination of her employment contract, whichever was the earlier. She overstayed illegally after her employment contract had been prematurely terminated. On 17 April 2013, she was arrested by the police for overstaying. On 4 April 2014, she lodged a non-refoulement claim. Thereafter, despite repeated reminders from the Immigration Department, the Applicant failed to proceed with her claim until 7 July 2017 when she requested for the resumption of assessment of her non-refoulement claim. Her claim was advanced on the basis that, if refouled, she would be forced to be a prostitute or to marry a person named Rafick by her stepmother because she had failed to repay a loan owed by her stepmother. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2023] HKCFI 1536).

5.  By a Notice of Decision dated 13 December 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds, namely, risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 14 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form:

“Having considered the evidence, the Board found that the applicant’s evidence was unreliable and illogical. In particular, the Board expressed its concern over the currency of the loan, which was in Hong Kong dollars instead of that in Indonesian currency; that she was not severely harmed by either her stepmother or Rafick. In fact, she was able to defend herself in both encounters with Rafick; that it was unreasonable why she did not tell her father about the stepmother’s conducts and why she did not follow her father’s advice to report the attempted rapes; that it was ironic that Rafick would cut himself with a knife; that neither her stepmother nor Rafick was government official; and that there was no state involvement and state protection was available to her [29]-[30]. In any event, internal relocation was a viable option [43]-[47].”

7.  On 9 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In her affirmation filed in support of the application, the Applicant raised the following grounds of judicial review, which the Judge summarized at §11 of the CALL-1 Form:

“(1) the hearing bundle with documents in English was given to her 6 days before the hearing without interpretation and she does not understand English;

(2) she did not have legal representation and she could not afford to employ one;

(3) she did not have enough time to prepare for the hearing before the Board;

(4) she was confused at the hearing, nevertheless, she answered all the questions put to her honestly; and

(5) because of the above, the hearing was unfair.”

THE JUDGE’S DECISION

8.  On 15 June 2023, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[15] The Board, for the reasons given above, had rejected her evidence on the facts of her claim. As to the grounds in paragraph 11 above, there is no record that she had complained to the Board that she did not have enough time to prepare for the hearing. The Court of Appeal in in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

‘16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.’

[16] Further the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

‘22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’

[17] Since she had answered all the questions put to her by the Board, it shows that she understood what was happening at the Board’s hearing. All of her grounds therefore fail.

[18] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

9.  On 5 July 2023, the Applicant applied by summons for an extension of time to appeal against the Order. On 1 August 2023, the Judge refused the Applicant’s application, holding, inter alia, that there was no prospect of success in her intended appeal.

THIS APPLICATION

10.  By a summons taken out on 4 August 2023 in the Court of Appeal, the Applicant renewed her application for an extension of time to appeal against the Order. No ground of appeal was given in the summons, or in her affirmation filed in support of the application, other than an allegation that the “documents” (ie the sealed order and the CALL-1 form/judgment) had been lost in the post.

11.  In her written submissions dated 16 August 2023, the Applicant sets out some general principles of law relating to assessment of non-refoulement claims, but fails to explain how those principles are relevant or applicable to her case. The Applicant also alleges generally, without particulars, that the Adjudicator acted in a procedurally unfair manner in dealing with her appeal without properly assessing her credibility.

DISCUSSION

12.  In deciding whether to extend time to appeal against the Order, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

15.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

16.  The Applicant has failed to identify any error in the Judge’s decision of 15 June 2023, or raise any viable ground of appeal against the Order.

17.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 4 August 2023 is dismissed.