NURAINI alias AINI NUR alias NUR AINI v. TORTURE CLAIMS APPEAL BOARD

CAMP 176/2023, [2023] HKCA 835

On Appeal From [2022] HKCFI 2891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 176 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1761 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 20 September 2022 refusing to grant leave for the applicant to apply for judicial review.[1] The intended judicial review was sought against the decision of the Torture Claims Appeal Board (“Board”) dated 21 June 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 28 September 2018 rejecting her non-refoulement claim.

Background

2.  The applicant is an Indonesian national, born in 1975. She arrived in Hong Kong on 2 January 2014 to work as a domestic helper. But after her employment contract was prematurely terminated on 14 March 2014, she did not leave and had overstayed since 29 March 2014. She surrendered to the Immigration Department on 15 May 2014 and lodged a non-refoulement claim on 29 May and 30 June 2014. Her claim was based on the fear that, if returned to Indonesia, she would be harmed or even killed by her ex-husband. The details of her claim are set out in paragraphs 5 to 29 of the Board’s decision dated 21 June 2019.

3.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, torture risk,[2] BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5] By notice of decision dated 28 September 2018, the Director rejected the applicant’s claim for non-refoulement protection.

4.  The applicant appealed to the Board against the decision of the Director. The Board held a hearing on 8 April 2019, at which the applicant gave oral testimony. Despite the vague nature of much of her evidence, the Board was prepared to give the applicant the benefit of the doubt and to accept that she was subjected to domestic violence from her ex-husband on a number of occasions during the marriage between 1999 and 2011. The Board was also prepared to accept that the ex-husband had borrowed money from a loan-shark and expected the applicant to work to service the loan. However, as there was no involvement of any public official, the Board did not accept that the applicant would be subject to the risk of torture as recognised by the law. Further, having regard to the fact that the applicant and her ex-husband had divorced and that the ex-husband had re-married and that neither he nor the loan-shark had shown any inclination to maintain any form of contact with the applicant or her family since 2012, the Board found that the risk of the applicant coming to the adverse attention of her ex-husband or the loan-shark in the event she returned to Indonesia was a remote risk and not a real risk. For these reasons, the Board did not find that the applicant faced any real applicable risks if refouled to Indonesia. Accordingly, in its decision dated 21 June 2019, the Board concluded that the applicant’s claim failed in relation to all applicable grounds and dismissed her appeal and affirmed the Director’s decision.

The Judge’s decisions in the court below

5.  On 25 June 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.

6.  On 22 August 2022, the applicant filed a further affirmation stating that she wanted to go back to her home country, that all the problems had finished, that her mother was very sick and she wanted to return home as soon as possible, and that she was withdrawing her application.

7.  Based on consideration of the documents alone, on 20 September 2022 the Judge issued his decision, dismissing the application for leave to apply for judicial review. The reasons were set out at [10] – [15] of the Form CALL-1 as follows:

“ 10. On 25 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking was given in her Form, and in her supporting affirmation of the same date she just attached a copy of the decision but without putting forward any proper ground for her intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by eth Applicant, I do not find any reasonably arguable basis for her intended challenge.

11. 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.

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

13. 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.

14. Furthermore, the Applicant recently on 22 August 2022 filed an affirmation requesting to withdraw her application as all her problems have been resolved and that she wants to return to her home country as soon as possible.

15. In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that she has no more problem returning to her home country, I accordingly dismiss her leave application.”

8.  Despite that the applicant had herself written to withdraw her case, she subsequently asserted that she was not satisfied with the Judge’s decision and that she wanted to appeal. However, she did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but took out a summons on 25 October 2022 to seek an extension of time to appeal against the decision of the Judge. In her summons and supporting affirmation, the applicant said that she was not satisfied with the decision, and that she wanted to appeal but did not get the letter from the court.

9.  The Judge listed the application for extension of time for hearing on 2 March 2023, but the applicant failed to attend. In his written decision issued on 13 March 2023,[6] the Judge recorded that the court’s decision was sent by post to the applicant on the date it was issued, and decided to refuse to extend time on the ground that there was no prospect of success in the intended appeal.

The renewed application before this Court

10.  By summons filed on 2 May 2023, the applicant seeks an extension of time from this court for her to appeal against the decision of the Judge refusing to grant leave for judicial review. In the accompanying affirmation, the applicant attached a document which purported to set out grounds for an application for judicial review by a non-refoulement claimant of Nepalese origin. The document does not make any sense since the applicant here is an Indonesian national.

11.  Despite having acknowledged the directions of the Registrar of Civil Appeals for written submissions to be lodged on or before 16 May 2023, the applicant has failed to date to provide any written submissions in support of her application to this court.

12.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. The applicant has provided no satisfactory explanation for her delay in taking steps to appeal against the Judge’s decision.

14.  Furthermore, the Judge’s decision followed the applicant’s own affirmation withdrawing the application and stating that she wished to return to her own country as soon as possible.

15.  In the circumstances it is impossible to see any grievance against the Judge’s decision.

16.  In any event the applicant has failed to show how the Judge has erred in refusing to grant leave for judicial review. In the documents filed the applicant attached a document that obviously had no bearing on her case.

17.  For these reasons we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.