RE DWI SURYANI SAFITRI

CAMP 150/2019

[2021] HKCA 367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 150 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1371 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K.W. Lung given on 31 January 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 15 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong to work as a foreign domestic helper on 5 February 2014.  She overstayed after her contract was terminated prematurely and she surrendered to the Immigration Department on 7 March 2016.  She lodged a claim for non-refoulement protection on 24 November 2016. 

3.  The applicant’s claim was based on threats from a creditor and her ex-husband.  The details of the applicant’s claim have been summarised by the judge at [2] to [3] of the CALL-1 Form.

4.  By a Notice of Decision dated 9 February 2018 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Board.  After a hearing on 25 April 2018, the Board dismissed the appeal on 15 June 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [51] – [54] of the Board’s Decision, the Board found that certain aspects of the applicant’s case were not credible.  The Board was satisfied at [51] and [55] that that she is unlikely to be subject to any of the proscribed harm upon her return.  The Board was also satisfied at [56] that state protection would be available for the applicant and at [61] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 12 July 2018 which contained the following grounds for judicial review:

(1) the Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2) the Board acted in a procedurally unfair manner in dealing with the appeal;

(3) the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness;

(4) the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) the Board misdirected itself on the law by considering that the applicant has to experience torture in the past in order to establish substantial grounds for believing that a risk of torture exists;

(6) procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(7) irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(8) irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

(9) irrationality in the Board’s failure to analyze and assess whether state protection exists and misdirected itself as to the extended meaning of state protection;

(10) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(11) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(12) procedural impropriety/unfairness by the Board in applying the incorrect standard of proof in its decision; and

(13) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

8.  In her affirmation in support of the leave application dated 12 July 2018, the applicant advanced the following grounds for judicial review:

(1) the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2) the unfair hearing led the Board to wrongfully question her credibility;

(3) the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for her to return; and

(4) the Board gave its decision on BOR 2 risk before this claim was screened by the Director.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [24] of the CALL-1 Form:

“12. The applicant requested a hearing and she had appeared before me.

13. She said that those grounds above were written by her friend. She did not have much knowledge about them herself. She simply trusted her friend. She confirmed that she received the hearing bundle shortly before the appeal hearing. But she was able to get this friend to explain the contents to her. She was not confused when she attended the appeal hearing. She understood the questions put to her by the Adjudicator and she answered them fully. She confirmed that all her answers were true and correct.

14. Overall, she has no complaint against the Immigration officer, her own lawyer and the interpreter at the screening process. Nor does she have any complaint against the Adjudicator or the interpreter.

15. What she said before me is clearly contradictory to those grounds above.

16. Even if those grounds were prepared by her friend on her behalf on the basis that she was not happy about the Board’s Decision, I consider that they are not substantiated.

17. The burden is on the applicant to set out the grounds in support of her application, such grounds have to bear substance, not just ‘putting forward a bare and flimsy assertion’ Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.

18. 11.d., f., g., h., i. are her opinions or comments without any evidence to support. They do not constitute valid grounds to challenge the Board’s Decision.

19. 11. a., b, c are inconsistent with her own version in Court. They can be disregarded.

20. As to 11.e, the Adjudicator did not rely upon her past experience of torturing. The Adjudicator was entitled to consider her past experience to consider her allegation that she would be tortured if she was refouled to Indonesia. Her allegation would be fortified by her past experience of torturing. It is a matter of weight that the Adjudicator would give to her allegation.

21. As to 11. J., the applicant had not raised the issue of her psychological or psychiatric in the screen process by the Immigration officer or before the Adjudicator. There is nothing amiss for the Board not to call for such reports.

22. As to 11.k., the Court of Appeal in Re: [Ahmed] Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: ‘This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA [37]. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’

23. I consider that the applicant has raised no reasonable ground in support of her judicial review.

CONCLUSION

24. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave for the judicial review. Accordingly, I dismiss her application.”

Application for extension of time to appeal and grounds for appeal

10.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A, the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 18 February 2019, the applicant sought leave to appeal out of time.  Her application was dismissed by the judge on 6 June 2019.

11.  By a summons dated 2 July 2019, the applicant renewed her application for an extension of time to appeal before this court.  In her affirmation of the same day filed in support of the application, the applicant deposed that:

“1. [The judge] was wrong in law in holding that there was no state acquiescence or involvement;

2. [The judge] failed to provide detailed reason in support of his decision.”

12.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 23 July 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

13.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

14.  We first note that the applicant has not provided any reasonable explanation for her delay in bringing the intended appeal.

15.  In relation to the ground concerning state acquiescence, this court has repeatedly held that an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The judge would not be required himself to come to a view on state acquiescence or involvement even if it had been raised before him, as the primary decision maker is the Board.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See:  Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

16.  We further reject the ground concerning the lack of reasons given by the judge. The judge has dealt with the applicant’s case by considering the material available to him and given sufficient reasons in the CALL-1 Form.  This ground is also without merit.

17.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 2 July 2019 is dismissed accordingly.

18.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.