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

CAMP 293/2023, [2023] HKCA 1105

On An Intended Appeal From [2022] HKCFI 596 &

[2023] HKCFI 2953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 293 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 306 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 25 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 Bruno Chan (“the Judge”) dated 25 February 2022 (“the Order”) refusing to grant her 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 30 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 December 2017 rejecting the Applicant’s non-refoulement claim.

3.  On 15 September 2023, the Applicant, having apparently been granted a dependant visa by the Immigration Department on 14 September 2023 allowing her to remain in Hong Kong, made a request to the Court for the dismissal of her appeal.

4.  Notwithstanding the said request, we consider that the Applicant’s application for extension of time to appeal should be determined substantively, and we proceed to do so on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

5.  The Applicant is a national of Indonesia. She last arrived in Hong Kong on 26 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 9 August 2015 or within 14 days of its early termination, whichever was the earlier. Her employment contract was prematurely terminated on 9 September 2013. She did not depart and instead overstayed until 13 August 2014 when she was arrested by the police. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband and/or by his creditor over his outstanding debts. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

6.  By a Notice of Decision dated 7 December 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

7.  The Applicant appealed the Director’s Decision to the Board. On 30 October 2018, 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 §10 of the CALL-1 Form:

“In its decision the Board found the Applicant’s evidence regarding her claimed fear of harm from her husband or his creditor confusing, inconsistent and conflicting that it doubted the credibility of her claim that her own evidence of having no further contact with her husband all these years and the fact that he was said to have gone to work in Taiwan since that it found her claim that he still poses a threat to her or her family is simply false, and concluded that the Applicant has failed to establish that there are substantial grounds for believing that she will face a real risk of ill-treatment at the hands of her husband or anyone else upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.”

8.  On 1 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review. The Board was named as the proposed respondent in the Form 86, but the decision in respect of which relief was sought was stated to be “Decision to refuse application USM: 9607/17/12/274/1945 on 7/Dec/2017”, which appears to be a reference to the Director’s Decision. We note that the Judge treated the application as one for leave to apply for judicial review of the Board’s Decision. The Judge was correct to do so, because the Director’s Decision had been overtaken by the Board’s Decision. No ground of review of either the Board’s Decision or the Director’s Decision was given in the Form 86, or in the Applicant’s supporting affirmation filed on the same date.

THE JUDGE’S DECISION

9.  On 25 February 2022, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[11] On 1 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, nor did she request any oral hearing for her application. 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 the Applicant, I do not find any reasonably arguable basis for her intended challenge.

…

[13] In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 37 – 48 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

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

[15] 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.”

10.  On 7 June 2022, the Applicant applied by summons for an extension of time to appeal against the Order. On 5 October 2022, the Judge refused the application, holding that there was no prospect of success in her intended appeal.

THIS APPLICATION

11.  By a summons taken out on 25 August 2023 in the Court of Appeal, the Applicant applied for an extension of time to appeal against the Order. In the summons, the Application merely stated the following:

“I request to the Court of Appeal to grant my leave as the High Court did not give me correct judgement”.

12.  In her supporting affirmation filed on the same date, the Applicant stated as follows:

“Affirmation for extension of time to appeal as I did not get any letter from the High Court. I want to appeal because I did not get justice. The High Court did [not] grant my leave and the High Court did not give chance to appeal. I changed my address. May be the High Court my first letter to my old address. But I did not get any letter there. I always went that room and search. So I have right to appeal.”

DISCUSSION

13.  In deciding whether to extend time to appeal, 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.

14.  In the present case, the Applicant’s delay of about 3 months in lodging her appeal was substantial. Her explanation for the delay was considered and rejected by the Judge:

“[2] The Applicant now by a summons issued on 7 June 2022 seeks extension of time to appeal against that decision, as the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A ended on 11 March 2022, and hence she was almost 3 months late with her intended appeal.

…

[5] The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and in the absence of any details or evidence to corroborate her bare assertion such as how she managed to find out about the decision which she now seeks to appeal if indeed she never received it in the mail, I am not satisfied that the Applicant has provided any good or valid reason for her serious delay.” (§§2 and 5 of the Judge’s decision dated 5 October 2022).

15.  If, as alleged by the Applicant, she had changed her address, it was incumbent on her to notify the Court of her new address in good time for the purpose of receiving letters, orders or decisions from the Court. The Applicant apparently failed to do so. We agree with the Judge that the Applicant has failed to give any good or valid reason for her delay.

16.  In any event, 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.

17.  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)).

18.  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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

19.  The Applicant has failed to identify any error in the Judge’s decision of 25 February 2022, or raise any viable ground of appeal against the Order.

20.  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

21.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 25 August 2023 is dismissed.