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

CAMP 96/2024, [2024] HKCA 820

On An Intended Appeal From [2024] HKCFI 672 &

[2024] HKCFI 1334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 96 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1595 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 30 May 2024, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge To (“the Judge”) dated 4 March 2024 (“the Order”) refusing to grant 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 6 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 September 2018 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents before us, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Indonesia. He entered Hong Kong on 4 October 2013 as a visitor with permission to remain up to 3 November 2013. He did not depart after the expiry of his limit of stay and overstayed instead. On 5 February 2014, he was arrested by the police. After he was referred to the Immigration Department for investigation and subsequently released on recognisance, the Applicant raised a non-refoulement claim on 27 April 2018 alleging that, if refouled, he would be harmed or killed by members of a motorbike gang known as Kelompok Nusa Kambangan Club King (“KNCK”) because he was unable to pay compensation of 70 million Indonesian rupiah for the damage to their motorbikes in a traffic accident allegedly caused by the Applicant on 3 March 2013. Details of the Applicant’s claim have been summarised by the Judge at §§4-9 of the CALL-1 Form ([2024] HKCFI 672).

5.  By a Notice of Decision dated 24 September 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds, namely, risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 6 May 2019, 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 §§10-13 of the CALL-1 Form:

“[10] The Board accepted that the events as asserted by the Applicant were true and assessed his claim on the basis of the case as he asserted. It found the risk of future harm feared by the Applicant does not come within the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance because it would not be inflicted by or at the instigation of a public official or person acting in an official capacity; and that Indonesia has an appropriate system of criminal law with a reasonably effective and impartial police force and justice system. Hence, it found there are no substantial grounds to believe that the Applicant would face a real risk of being subjected to torture if refouled to Indonesia and rejected his claim under the Torture Risk ground.

[11] It accepted that there is a small but real risk that the Applicant would suffer serious physical mistreatment from members of the KNCK if returned to his home area of Cilicap, but not if on his return he relocates to some other parts of Indonesia. The Applicant is therefore not entitled to protection under BOR 3 Risk ground.

[12] The Board also found he is not entitled to protection under the Persecution Risk ground because the feared harm does not arise from one or more of the reasons set out in the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie for reason of a person’s race, religion, nationality, membership of a particular social group or political opinion.

[13]  As for BOR 2 Risk ground, there is no evidence that the Applicant may be deprived of his life by the Indonesian government or that the humanitarian conditions in Indonesia are so dire as to render refoulement a violation of his right to life.”

7.  On 11 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review. In his supporting affirmation, the Applicant stated that he would like to “reject and review” the decision of the Immigration Department as it disregarded his dangerous situation. The Judge treated the Applicant’s 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 was given by the Applicant in the Form 86.

THE JUDGE’S DECISION

8.  On 4 March 2024, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons set out at §17 of the CALL-1 Form:

“Having rigorously examined the [Board’s] Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the [Unified Screening Mechanism]; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim wholly on the basis of the case as he asserted. It was on that basis that the Board found for reasons as stated in paragraphs 10 to 13 above that he is not entitled to protection under any of the four applicable grounds. These are finding of facts and of the law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as he asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on that basis that the Board further found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law in the [Board’s] Decision. The [Board’s] Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

9.  On 3 April 2024, the Applicant applied by summons for an extension of time to appeal against the Order. On 24 May 2024, the Judge refused the Applicant’s application, holding that there was no reasonable explanation for his delay, and also he had failed to put forth any proper or valid draft or proposed grounds of appeal, and did not have any prospect of success in his intended appeal ([2024] HKCFI 1334).

THIS APPLICATION

10.  By a summons taken out on 30 May 2024 in the Court of Appeal, the Applicant applied for leave to appeal out of time against the Order. In both the summons and his supporting affirmation, the Applicant said that he did not receive the sealed Order within 14 days from 4 March 2024 due to it having been lost in the post, and he could only get the Order after searching the court file. He did not, however, set out any intended grounds of appeal in either the summons or his supporting affirmation.

11.  In his written submissions dated 13 June 2024, the Applicant set out some general principles of law relating to non-refoulement claims, but failed to explain how those principles are relevant or applicable to his case.

DISCUSSION

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

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.  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.

15.  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)).

16.  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 error of law or procedural unfairness or irrationality of the Board’s Decision is shown in the present case.

17.  The Applicant has failed to give any good or valid reason for his substantial delay in seeking an extension of time to appeal. The Applicant has failed to identify any error in the Judge’s decision of 4 March 2024, or raise any viable ground of appeal against the Order.

18.  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

19.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 30 May 2024 is dismissed.