TRI-NURIYATI v. TORTURE CLAIMS APPEAL BOARD

CAMP 271/2021

[2022] HKCA 389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 271 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1547 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 April 2021, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.^[1]

2.  On 15 July 2021, DHCJ Chan dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show that she has any reasonable prospect of success in her intended appeal.^[2]

3.  On 22 July 2021, the applicant filed the present summons with the Court of Appeal seeking to challenge the decision of the judge.  In light of the decision 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 made by DHCJ Chan dated 28 April 2021.

4.  The applicant is a national of Indonesia.  She is 37 years old.  She came to Hong Kong to work as a foreign domestic helper on 30 August 2013. Her employment was terminated after 15 months when she was arrested on 23 November 2014 for soliciting for an immoral purpose and breach of condition of stay.  She was sentenced to 6 weeks in prison.  The applicant submitted her claim for non-refoulement either while in prison or shortly after her release. The basis of her claim was mainly her fear of being harmed or killed by a money-lender who lent money to her father.  

5.  By a Notice of Decision dated 26 October 2015, the Director of Immigration (“Director”) rejected her claims on torture risk^[3], BOR 3 risk^[4] and persecution risk^[5].

6.  By a Notice of Further Decision dated 27 June 2017, the Director rejected her claims on BOR 2 risk^[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to her non-refoulement claims.

7.  The applicant appealed against the Director’s decisions to the Board and attended the hearing before the Board on 10 July 2018.  The Board’s assessment was that the feared ill-treatment is unlikely to materialize upon the applicant’s return to Indonesia.  The Board held that the applicant’s case is private in nature and did not involve the consent or acquiescence of the Indonesian government.  Furthermore, the applicant has admitted there is no evidence of severe pain and physical or mental suffering, which undermines her “torture risk” claims.  Lastly, the Board observed that the availability of state protection and internal relocation alternatives in Indonesia further lowers or negates the perceived risk of deprivation of life.  Therefore, the Board dismissed the applicant’s appeal on 30 July 2018.

The judge’s decision

8.  On 3 August 2018, the applicant applied for leave to apply for judicial review against the Board’s decision.  She did not supply any grounds for seeking relief and simply enclosed a bundle of documents used at the Board’s hearing, the Board’s decision and a letter citing various English cases.  As the applicant did not request for an oral hearing, DHCJ Chan considered the application on paper. 

9.  The judge found that the applicant did not put forward any proper ground for her intended challenge of the Board’s decision.  He observed there is no error of law or procedural unfairness in the Board’s decision.  The judge found that in particular, the applicant’s relocation to other parts of Indonesia is not unreasonable and as such, there is simply no justification to afford her with non-refoulement protection in Hong Kong.  In conclusion, he found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 28 April 2021. 

Grounds of appeal

10.  The applicant did not provide any grounds of appeal in her summons.  As for her supporting affirmation, she simply stated that she did not receive the court documents and was only aware of them after searching the court file.  However, no notice of change of address for service was filed to notify the court of her new address. 

11.  In relation to the applicant’s written submissions, they may be summarised as follows:

(i)  High standards of fairness are required on the part of the decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(ii)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing her credibility.

Analysis and disposition

12.  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.

13.  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 April 2021.  The applicant took out summons in the court below on 14 May 2021.  She has not provided a reasonable explanation for the delay of 2 days.

14.  Leaving aside the absence of reasonable explanation for the short delay, what is crucial in this application for extension of time is the prospect of success of the intended appeal.

15.  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.

16.  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.

17.  In the present case, the applicant’s written submissions are mainly bare assertions against the Board and she did not produce any particulars or evidence in support.  The Board in fact did not dismiss the appeal based on any adverse finding on the applicant’s credibility.  The Board found on the applicant’s own case that she had failed to demonstrate a real risk of harm.  The judge at the court below also provided well-founded reasons for his decision.  The applicant failed to demonstrate that the judge had made any errors of law or failed to take into account relevant matters already placed before the court or was otherwise plainly wrong.

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 April 2021 and dismiss the summons filed on 22 July 2021.

[1] [2021] HKCFI 1169

[2] [2021] HKCFI 1995

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).