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

CAMP 209/2022

[2022] HKCA 1781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 209 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 71 OF 2019)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  On 24 December 2021, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to seek judicial review against the decisions of the Director of Immigration (“the Director”)  and the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement protection claim[1].

2.  On 16 June 2022, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as the applicant’s appeal appeared to be hopeless[2].

3.  On 24 June 2022, the applicant filed a renewed application for leave to appeal out of time with the Court of Appeal.

4.  The applicant is a national of Indonesia.  She is 47 years old.  She arrived in Hong Kong on 1 December 2015 with permission to remain for employment as a foreign domestic helper.  Her employment was terminated prematurely on 31 August 2016 and she subsequently overstayed.  On 4 November 2016, she was arrested by the police.  She lodged a non-refoulement claim on 21 November 2016.  Her claim was made on the basis that she will be harmed or killed by her husband and her creditor.

5.  By a Notice of Decision dated 21 March 2018, the Director rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6]. 

6.  The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 12 June 2018.  The Board observed a number of differences between the applicant’s oral evidence and the information she provided in the non-refoulement claim form, for which she failed to give sensible explanation.  The Board concluded that she is not a witness of truth and has fabricated her claims for non-refoulement.  The Board did not accept that the applicant would face a risk of harm if she returns to Indonesia.  For those reasons, the Board decided that the applicant is not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and dismissed the appeal on 8 November 2018.

The judge’s decision

7.  On 9 January 2019, the applicant filed a Form 86 and supporting affirmation to apply for leave to bring judicial review against the decisions of the Director and the Board.  She put forward the following grounds for her intended challenge in her written submissions:

(1)  The Director and the Board did not determine her case fairly.

(2)  The Board was in breach of procedural unfairness in that:

(a)  the Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirement;

(b)  the adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(c)  the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(d)  the Board failed to meet the greater care and duty owed to a self-represented claimant; and

(e)  due to her lack of understanding of what happened at her appeal hearing as the hearing bundle was not provided to her earlier, she was confused in terms of what happened during the hearing.  

(3)  The Board significantly relied on source of news which was not officially recognized or simply hearsay or fairly outdated resulting in its groundless speculations that it would be safe for her to return to her home country.

8.  The applicant was absent from the hearing before DHCJ Bruno Chan on 7 December 2021.  The judge then considered the application on paper.  The judge found that none of the applicant’s assertions were supported by any particulars or elaborations. He further decided there is no error of law, procedural unfairness or any failure on the part of the Director and the Board to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  Thus, the judge dismissed the leave application on 24 December 2021.

Grounds of appeal

9.  The applicant stated her grounds of appeal in her written submissions.  They are substantially the same as the ones raised in her leave application before the judge below.  She added that the authorities have not carefully and thoroughly assessed her case and it is untrue that state protection is available in Indonesia.

Analysis and disposition

10.  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.

11.  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 judge’s order was made on 24 December 2021.  The applicant took out her summons in the court below on 10 January 2022.  She was late for 3 days. 

12.  The applicant stated in her affirmation filed with the court below that she does not understand English, which may be taken to mean that she needed time to seek help to understand the decision and prepare her application in English.  Even if the court is minded to accept her explanation in view of the short delay, the court would still assess whether the applicant can show there is reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

13.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  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 decision of the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[8].  In any event, the new ground does not have any prospect of success as the dismissal of the appeal by the Board was not based on the finding on the availability of state protection but because it considered that the applicant would not face any risk of harm in Indonesia. 

16.  The judge has sufficiently considered the applicant’s grounds and given detailed reasons for the decision.  The applicant failed to provide any reasonably arguable ground to show that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

17.  As there is no prospect of success in her intended appeal, it would not be appropriate to grant leave to appeal out of time.  We therefore dismiss the summons for extension of time filed on 24 June 2022.