RE SUPIATI

CACV 319/2022

[2022] HKCA 1837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 319 OF 2022

(ON APPEAL FROM HCAL NO 22 OF 2019)

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J U D G M E N T

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

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 5 August 2022, by which the Deputy Judge refused to grant extension of time and dismissed her application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2421).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 2 February 2017 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 April 2015 (“the Director’s 1^st Decision”) rejecting her non-refoulement claim.

3.  We heard the appeal on 24 November 2022.[1]  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.  The applicant is a national of Indonesia.  She last arrived in Hong Kong 13 June 2003 with permission to work as a foreign domestic helper until the expiration of her employment contract on 13 June 2005 or within 14 days of its early termination. On 2 August 2003, her employment was prematurely terminated and she did not depart and instead overstayed.  On 19 November 2011, she was arrested by the police for having overstayed and was subsequently convicted and sentenced for imprisonment.  On 27 April 2012, she was discharged from prison and lodged a torture claim on 23 May 2012.  However, she had absconded since 30 April 2013.  On 1 August 2014, she was again arrested by the police and was referred to the Immigration Department on the following day.  On 6 August 2014, she lodged a non‑refoulement claim on the basis that she would be harmed or killed by her abusive husband and/or her husband’s creditor for his outstanding debts.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [4] of the Leave Decision.

5.  By a Notice of Decision dated 21 April 2015, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[2], BOR3 risk^[3] and persecution risk^[4].  Taking into account all relevant circumstances, the Director considered that her non-refoulement claim was not substantiated.

6.  The applicant then appealed against the Director’s Decision to the Board on 13 May 2015.  The applicant attended the hearing before the Board on 15 April 2016.  Having assessed the evidence, the Board considered that the applicant’s problems with her husband and/or her husband’s creditor were private domestic or monetary disputes without any official involvement.  The Board also considered the Country of Origin information (“COI”) and came to the view that state protection and internal relocation would be available to her and on the evidence, the applicant had failed to substantiate her claim on the applicable grounds.  Accordingly, the Board dismissed her appeal on 2 February 2017.

7.  Meanwhile, on 23 March 2017, the Director invited the applicant to submit any additional materials or facts which may be relevant to her non-refoulement claim on all applicable grounds including BOR2 risk[5].  As the applicant did not reply to the Director, the Director assessed her claim based on the materials previously submitted by the applicant and rejected her non-refoulement claim on BOR2 risk by way of the Notice of Further Decision dated 26 April 2017 (“the Director’s Further Decision”).  The applicant did not lodge any petition against the Director’s Further Decision to the Board.

The Leave Decision

8.  On 4 January 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision.  By that time, she was over one year and eight months late in taking out her application.  In her supporting affirmation, she put forward the following grounds in support of her intended challenge:

(1)  Procedural impropriety in failing to properly apply paragraph 2 of the UN committee against Torture General Comment No 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence that reforms and means of relief introduced must be effective in any event of the Board’s decision which focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failure to conduct sufficient inquiry into the relevant COI;

(3)  Procedural impropriety or irrationality in failure to provide reasons for its assessment of BOR3 Risk and/or sufficient basis to support its conclusion of lack of BOR3 Risk;

(4)  Error/misdirection in law in failing to take into account the consideration of psychological strain and threats to the Applicant personally of being killed if returned to her home country; and

(5)  That there was no sufficient basis to conclude that the Applicant would not be at risk of being subjected to torture or CIDTP upon refoulement to her home country.

9.  On 2 June 2022, the applicant attended an oral hearing before the Deputy Judge and an interpreter of the Indonesian language was also present to provide language assistance.

10.  By the Leave Decision, the Deputy Judge refused to grant extension of time and dismissed her application for leave to apply for judicial review.  His reasons were set out at [13] ‑ [19] of the Leave Decision:

“13. In the Applicant’s case, a delay of more than 1 year and 8 months must be considered as extremely substantial and obstinate, and even if she were to argue that the Director’s subsequent invitation for her to submit additional facts relevant to her non-refoulement claim on ‘all applicable grounds’ could have extended the period for her to apply for judicial review of the Board’s decision, she would still have been seriously out of time with her intended application, for which she explained in both her affirmation and at the hearing of her application that she moved to another address at the time but without informing the authorities, and hence she never received the Board’s decision in the mail, and it was much later when she reported to the Immigration Department on her recognizance that she was informed by her immigration officer of the decision, but by then she was already seriously out of time with her application.

14. The record shows that the Board’s decision was sent on the same day to her then reported address without returning through undelivered post, and that the Applicant did not provide any further details or evidence to corroborate her bare assertions, while if indeed she did change her address at the material time, it was clearly her duty to inform the relevant authorities, and as she conceded she did not do so, she has only herself to blame for failing to receive the decision in the mail, and as such I am not satisfied that she has provided a good reason for her serious delay.

15. As for the merits, if any, of her intended application, her proposed grounds are all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or fail to make sufficient inquiry or give sufficient reasons for its assessment or determination of her non-refoulement claim or appeal, while even on the factual basis of her own case of domestic and/or monetary disputes with her husband or creditor without any involvement of any torture or CIDTP or persecution risks that her non-refoulement claim simply did not engage any of the applicable grounds. As such I do not find any of her proposed grounds reasonably arguable for her intended challenge, 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 the Applicant, nor do I find any merits in her intended application either.

16. 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.

17. 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.

18. In the premises and 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.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.”

The Appeal

11.  On 15 August 2022, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision.  In her Notice of Appeal, she advanced the following grounds:

(1)  The Deputy Judge did not consider that the Board and the Director failed to properly investigate or inquire her claim and the Country of Origin conditions that the authority of her country would not be able to protect her from her enemies;

(2)  The Board and the Director failed to consider her fear under BOR3 and BOR2 risk and that even if the Director and the Board considered her claim to be personal and private in nature, her risk and fear was real;

(3)  The Board and the Director had failed to take into account relevant considerations/ taking into account irrelevant matters and/or failed to give proper weight to relevant considerations and materials and as such, their decisions were illegal.

12.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 August 2022, the applicant lodged her written submissions on 7 October 2022.  She repeated those grounds made in her Notice of Appeal and further submitted that the Board and the Director failed to consider that she would face real risk upon refoulement because of her fear of her enemies, her life would be in danger and that she would be placed under severe mental distress as a result.  She further contended that the Board failed to properly consider her fear as stated in her claim, and that there was no clear direction as to why she would not be a subject of persecution upon refoulement.

13.  We heard the appeal on 24 November 2022.  An Indonesian interpreter was present to provide language assistance.  During the hearing, the applicant confirmed that she had nothing further to add to her written materials.

Discussion

14.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

16.  It is clear that the applicant’s appeal is wholly without merit.

17.  At the outset, all her contentions are bare, vague and unsupported by specific particulars or evidence.  It is trite that general assertions of an applicant’s fear if refouled do not constitute proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  In the present case, it is evident from the Board’s Decision that the Board had carefully considered the relevant COI and the applicant’s evidence before rejecting her non-refoulement claim and dismissing her appeal on all applicable grounds including torture risk, BOR3 risk and persecution risk.  In particular, the Board had also considered and given detailed reasons as to why her claim on persecution risk failed: see the Board’s Decision at [60] ‑ [63].  Further, the applicant had never lodged any petition against the Director’s Further Decision to the Board and did not raise any application for leave to apply for judicial review against the Director’s Further Decision.  Accordingly, her complaints in relation to the assessment of her non-refoulement claim under BOR2 risk are wholly misplaced and must fail.

18.  In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  We see no basis to interfere with the Leave Decision.

19.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.