SUPRIYADI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 425/2021

[2022] HKCA 413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 425 OF 2021

(ON APPEAL FROM HCAL NO 2519 OF 2018)

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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 4 October 2021, the Applicant took out a summons with a supporting affirmation applying for an order that the Order made by Deputy High Court Judge Bruno Chan dated 21 September 2021 be set aside and leave to file a notice of appeal be granted. By his order dated 21 September 2021, Deputy High Court Judge Bruno Chan refused to grant the Applicant an extension of time to appeal against the order of Deputy High Court Judge C P Pang (“the Judge”) dated 11 February 2021 refusing to grant the Applicant leave to apply for judicial review.

2.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.  The Applicant is a national of Indonesia. He last arrived in Hong Kong on 24 January 2014, subsequently overstayed, and illegally remained in Hong Kong. On 10 March 2015, he surrendered to the Immigration Department and lodged a non-refoulement claim. His claim is based on an alleged fear that, if refouled to Indonesia, he would be harmed or even killed by his father-in-law because he had changed his religious belief from Salafi to Nahdatul Ulama. Details of the Applicant’s claim have been summarised by the Judge at §§2-3 of the CALL-1 Form ([2021] HKCFI 296).

4.  By a Notice of Decision dated 22 March 2018, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.  The Applicant appealed the Director’s Decision to the Torture Claims Appeal Board (“the Board”). On 15 October 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”). The Board was not satisfied that the Applicant would face any real risk of harm from his father-in-law since all that his father-in-law had done was to threaten to kill him once, and did not do anything further. Further, the Applicant did not report the matter to the police or seek assistance from the authorities. The Board also considered that internal relocation was a viable option for the Applicant. The Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

6.  On 9 November 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.  On 11 February 2021, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§13-15 of the Form CALL-1, the Judge stated as follows:

“13. When the applicant pursued the appeal to the Board, the Director's decision was superseded by the Board's decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will nevertheless examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board's decision.

14. In the present case, the Board did not take issue with the applicant's asserted primary facts and events. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant's claim based on its assessment of the risk of harm as well as its findings on the viability of internal relocation.

15. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.”

8.  On 24 March 2021, the Applicant issued a summons applying for extension of time to appeal. As earlier mentioned, on 21 September 2021, Deputy High Court Judge Bruno Chan refused to extend time for the Applicant’s appeal and dismissed his application.

THIS APPLICATION

9.  By a summons taken out on 4 October 2021, the Applicant applied to this Court for an order that the Order of Deputy High Court Judge Bruno Chan dated 21 September 2021 be set aside and leave to file a notice of appeal be granted. In his supporting affirmation filed 4 October 2021, the Applicant stated that he was deprived of the opportunity to understand the judgments without interpretation service and to raise proper grounds of appeal. He complained about the lack of an oral hearing before the Judge, and said that an extension of time should be granted because he was not aware that the Hong Kong court was different from that of the Board.

10.  In his 4-page written submissions filed on 19 October 2021, the Applicants essentially repeats what he stated in his affirmation. He also complains about the lack of legal representation to assist him.

DISCUSSION

11.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

12.  In deciding whether to extend time to appeal, this 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.

13.  The prospect of success of the intended appeal is important. The court will not grant extension to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

15.  The Plaintiff’s delay of 4 weeks to seek leave to appeal is substantial, and the Applicant has not provided any explanation, or good explanation, for the delay. Regarding the chances of the appeal, it is well established that a high standard of fairness does not include the provision of interpretation service at any time that a non-refoulement claimant may desire or wish to have, or legal representation at all stages of a non-refoulement claim. His affirmation and written submissions are both written in English of a reasonable standard. This shows that the Applicant either can read, write and understand English, or has language assistance of his own. The lack of an oral hearing before the Judge was due to the fact that he did not request for an oral hearing. In any event, the Applicant has not identified any further significant point that he could have made or said to the Judge had there been an oral hearing of the application for leave to apply for judicial review. The complaints that he has made in his affirmation and written submissions are all without merits.

16.  Overall, the Applicant has failed to raise any reasonably arguable ground of appeal against the Judge’s decision. There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

17.  The application for extension of time to appeal is refused, and the Applicant’s summons of 4 October 2021 is dismissed.