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

CAMP 237/2022

[2023] HKCA 112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 237 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2560 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 28 February 2022, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 14 June 2022, the judge dismissed the applicant’s application for extension of time to appeal against his decision as there is no merit in the intended appeal[2].

3.  On 8 July 2022, the applicant filed the present summons with the Court of Appeal to appeal the order made by the judge dated 14 June 2022. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 28 February 2022.

4.  The applicant is a national of Indonesia. She is 46 years old. She had been employed as a foreign domestic helper in Hong Kong since 2016 but her employment was prematurely terminated. She did not depart from Hong Kong and was subsequently arrested for overstaying. On 6 March 2014, she filed a non-refoulement claim on the basis that she would be harmed or killed by her husband. The applicant was, however, absent at the notice briefing and her case was allowed to be re-opened on 9 March 2018.

5.  By a Notice of Decision dated 24 May 2018, the Director of Immigration rejected the applicant’s claim in respect of torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6] (“Director’s Decision”).

6.  The applicant appealed against the Director’s Decision to the Board and attended the hearing before the Board on 22 August 2018.  The Board did not accept the applicant’s credibility as there were various inconsistencies, including a vital part whether it was her husband or the applicant who wanted the divorce. The Board did not believe the applicant would be unable to confirm such an important piece of information. The Board found no evidence to suggest a reasonable likelihood of the applicant’s persecution upon returning to Indonesia. She was not on the watch list of the Indonesian Government and the injuries she allegedly suffered did not amount to the level of torture. Even taking her evidence at the highest, she was unable to establish a risk of being tortured by her husband. The Board therefore dismissed the applicant’s appeal on 12 October 2018.

The judge’s decision

7.  On 14 November 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. She did not supply any grounds in support of her application in Form 86 or in her supporting affirmation. She merely annexed the Director’s Decision and the Board’s decision to her affirmation. As she did not request an oral hearing, the judge considered the application on paper.

8.  The judge held there was nothing to show that the Board had committed any error of law or that there was any procedural unfairness of the Director and the Board. Moreover, the judge found there was no Wednesbury unreasonableness or irrationality in the findings of the Board. Thus, the judge found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 28 February 2022.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in her summons. In her affirmation in support, she stated that she disagrees with the decision of the authorities and asserted that her claim has not been determined fairly.

10.  As for her written submissions, her contentions may be summarised as follows:

(1)  Her case has not been determined fairly.

(2)  The discriminatory act of the authorities towards non-refoulement claimants in the quick disposal of their cases is unacceptable and is detrimental to the spirit of the judicial system.

(3)  The Board significantly relied on the source of news which is not officially recognised or is simply hearsay.

Analysis and disposition

11.  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.

12.  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 28 February 2022. The applicant issued her summons in the court below on 28 April 2022. The High Court registry was temporarily closed for public health reasons during the general adjournment period between 7 March 2022 and 11 April 2022. The registry has resumed operation since 12 April 2022. Pursuant to Section 71(1A)(a) of the Interpretation and General Clauses Ordinance (Cap 1), if the act is allowed to be done within a period of time, and the last day of the period is a closure day for the office, the period includes the next following day, not being a closure day for the office. The applicant should have filed her summons promptly when the registry was re-opened on 12 April 2022. She was late for almost two weeks. She did not provide any justifiable reason to the court below for failing to file her notice of appeal promptly when the registry was re-opened.

13.  As the applicant’s delay is not excusable, she must show a real prospect of success on the merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  In assessing the merits 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.

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 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.

16.  The applicant’s complaints against the Board of procedural unfairness were not raised in the leave application before the Court of First Instance. It is not open to her to put forward these complaints as new grounds for the first time in the intended appeal, which are well outside the time limit for bringing the judicial review proceedings. Nor has the applicant provided any particulars, elaboration or evidence of such grounds.

17.  The assessment of the merits of the claim for non-refoulement is a matter for the Director and the Board, who are the primary decision makers. The court’s focus on a judicial review application is the lawfulness and rationality of the primary decision makers’ decisions and the procedural fairness of the decision-making process. We agree with the judge there is no error of law or procedural unfairness in the Board’s decision, nor is there any basis to challenge the decision as unreasonable or irrational.

18.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 28 February 2022 and dismiss the summons filed on 8 July 2022.