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

CAMP 19/2021

[2021] HKCA 1199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 19 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1852 OF 2018)

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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.  On 14 May 2020, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 5 May 2017 and dismissed the application for leave to seek judicial review against the Board’s decision dated 2 August 2018[1].

2.  On 8 June 2020, the applicant filed a summons for leave to appeal out of time against that decision, as the 14-day period to file her appeal ended on 28 May 2020.  The application was dismissed by Deputy High Court Judge C P Pang on 30 December 2020[2].

3.  On 13 January 2021, the applicant filed a renewed application with the Court of Appeal for leave to appeal out of time against the decision of the DHCJ K W Lung dated 14 May 2020.

4.  The applicant is a national of Indonesia.  She is 39 years old.  She came to Hong Kong on 22 October 2012 to work as a domestic helper.  After her employment contract was terminated, she did not leave Hong Kong and subsequently overstayed.  She was arrested by the police on 11 March 2013.  She was later convicted of the offence of breach of condition of stay and was sentenced to four-week imprisonment suspended for three years.  A removal order was issued against her on 14 November 2013. She lodged a torture claim on 25 February 2014 on the basis that she will be killed by a Muslim man who demanded to marry her and to convert her religion to Islam if she returns to Indonesia.  Her torture claim was later taken as a non-refoulement claim under the unified screening mechanism.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 28 May 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.  The applicant appealed against the Director’s decision to the Board.  She attended the hearing before the Board on 4 October 2016.  The Board considered that the applicant has not established she has a well‑founded fear as there is no suggestion that the applicant or any of her family members has suffered any harm and the alleged problem is a private dispute without any involvement of the state actor.  There is also no suggestion that the Indonesian government has any adverse interest in the applicant.  The Board further assessed there was no circumstance that would make it unreasonable for her to relocate and live safely elsewhere in Indonesia.  Therefore, the appeal was dismissed by the Board on 5 May 2017 (“the Board’s first decision”).

7.  By a Notice of Further Decision dated 2 August 2018, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to her non-refoulement claim. 

8.  The applicant appealed against the Director’s Notice of Further Decision to the Board.  The Board decided that it was unnecessary to hold an oral hearing and considered the appeal on paper as there were no new materials or facts in relation to the applicant’s claim under BOR 2 risk.  The Board found no evidence to show that the applicant will be at risk of harm from capital punishment inflicted by the government of Indonesia or that she will face harm from the Indonesian government that would place her life at risk.  Therefore, the appeal against the Director’s further decision was dismissed by the Board on 2 August 2018 (“the Board’s further decision”).

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 6 September 2018 for leave to apply for judicial review against the Board’s further decision.  She put forward the following grounds for her intended challenge:

(1)  Procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)  Procedural impropriety/irregularity: failure to conduct oral hearing for her BOR 2 claim and failure to provide sufficient opportunities for her to present her case;

(3)  Error/misdirection in law: failure to take into account the considerations of psychological strain and threats to her personally;

(4)  No sufficient basis to conclude that she would not be at risk of being subjected to any kind of life risk upon refoulement.

The judge’s decision

10.  The applicant attended the hearing before DHCJ K W Lung on 20 August 2019.  At the hearing, judge granted leave for the applicant to amend her Form 86 to include the Board’s first decision.

11.  The judge rejected ground (1) as it is not supported by any evidence.  Ground (2) fails as the Board was entitled to determine an appeal without a hearing if it was satisfied that the appeal can be justly determined without a hearing pursuant to section 12 of Schedule 1A of the Immigration Ordinance (Cap 115).  The judge rejected ground (3) as the applicant did not raise the relevant issues with the Board at the appeal hearing.  Ground (4) was rejected as the Board had given valid reasons in support of its decisions and the applicant failed to establish why she considered those reasons were insufficient.  As the applicant failed to show that she has a reasonable prospect of success in her proposed judicial review, the judge refused to grant her extension of time for her application for leave to apply for judicial review of the Board’s first decision and dismissed her leave application concerning the Board’s further decision on 14 May 2020.

Grounds of intended appeal

12.  The applicant stated as her ground of appeal in her summons that the judge failed to consider the reason why she was late in filing the application for leave to bring judicial review.

13.  Her contentions in her written submissions may be summarized as follows[7]:

(1)  The Director and the Board failed to comply with their duty to make sufficient inquiry into the relevant country of origin conditions and adopted a passive approach in contravention of the high standards of fairness.

(2)  They failed to take into account relevant considerations and materials.

Analysis and disposition

14.  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.

15.  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 14 May 2020.  The applicant took out a summons at the court below on 8 June 2020.  She was late by 11 days.

16.  The applicant explained to the judge at the hearing at the court below that she was late in filing the appeal as she was detained in Lo Wo.  Even if the court is minded to accept her explanation for the delay, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[8].

17.  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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  The applicant’s complaint against the judge for failure to consider the reason why she was late in taking out the leave application would not assist the merits of her intended appeal as the judge found there is no reasonable prospect in her intended judicial review.  Under these circumstances, even if the judge had granted her extension of time to seek leave to bring judicial review, her leave application would still be dismissed.

19.  In the present application, the applicant failed to show that the judge was wrong in reaching the conclusion that she has no reasonable prospect of success in her intended judicial review.  She also failed to adduce any evidence to refute the Board’s findings or to provide any particulars or elaboration to show that the Director and the Board had failed to comply with their duty or failed to take into account relevant considerations and materials.

20.  For the above reasons, there is no prospect of success in her intended appeal. We refuse to grant extension of time to appeal against the judge’s decision of 14 May 2020 and dismiss the summons filed on 13 January 2021.