Case Detail

HCAL 1852/2018

[2020] HKCFI 3123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1852 OF 2018

______________

RE:

Boinem

Applicant

______________

Before:

Deputy High Court Judge C P Pang in Chambers

Date of Hearing:	25 November 2020
Date of Decision:	30 December 2020

______________

DECISION

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Background

1. On 14 May 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant extension of time and leave to the applicant to apply for judicial review (“the Judge’s order”) against the decisions of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 5 May 2017 and 2 August 2018. The Board in its decisions upheld the decisions of the Director of Immigration (“the Director”) dated 28 May 2015 and 5 June 2017 rejecting the applicant’s non-refoulement claim.

2. The Judge refused to grant extension and leave to the applicant to apply for judicial review for reasons stated in [17-22] of his decision (Form CALL-1). Significantly the Judge found that the applicant’s intended application for judicial review had no reasonable prospect of success. He refused to grant extension of time for the applicant’s late application against the Board’s first decision dated 5 May 2017, and refused leave for judicial review against the Board’s second decision dated 2 August 2018.

3. By a summons filed on 8 June 2020, the applicant applied for “leave to appeal” against the Judge’s order. On 14 July 2020, the decision of H v Director of Immigration[2020] HKCFA 22 was handed down by the Court of Final Appeal. The CFA held that the refusal by a judge of an extension of time to make an application for judicial review is part and parcel of a refusal to grant leave to apply for judicial review. Therefore, the Judge’s order is appealable as of right by reason of Order 59, rule 21(1)(g): paragraph 42 of the judgment. There is no further need under section 14AA of the High Court Ordinance (Cap 4) for an applicant to seek leave to appeal before the Court of First Instance judge before he/ she may appeal directly.

4. Given the circumstances, I will treat the applicant’s summons application as an application for extension of time to appeal against the Judge’s order.

5. However, the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of High Court ended on 28 May 2020. She was therefore late by 11 days with her intended appeal when she filed her summons.

Discussion

6. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

7. Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226. In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

8. On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad[2018] HKCA 227; Re Adumekwe Rowland Ejike[2019] HKCA 702; Re: MA[2019] HKCA 1020; Re Muhammad Shehbaz[2020] HKCA 256.

9. In the present case, the applicant was late by 11 days. As the delay was not significant, I would focus on the more important issue of the merit of the intended appeal.

10. In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. 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.

11. In his decision dated 14 May 2020, the Judge considered each and every ground of review raised by the applicant and found no merits in any of the grounds and gave reasons for it.

12. In my view, the Judge properly reviewed the decisions of the Board and the Director with rigorous examination and anxious scrutiny. The Judge demonstrated in his consideration that he had applied the relevant legal principles correctly and considered all the relevant issues reasonably and properly.

13. The applicant has not identified any grounds of appeal or errors in the Judge’s decision. None could be ascertained from the papers or at the hearing.

14. Having considered the materials before me, I am of the view that the findings by the Board and the Judge’s observations are justified. I share the Judge’s view that the applicant’s application for judicial review had no reasonable prospect of success and that leave to apply for judicial review should be refused.

Conclusion

15. I cannot see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. Accordingly, I refuse to grant any extension of time, and the summons dated 8 June 2020 taken out by the applicant is dismissed.

	(C P Pang)
	Deputy High Court Judge

The applicant, unrepresented, appeared in person

HCAL 1852/2018

[2020] HKCFI 810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1852 of 2018

BETWEEN

	Boinem	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

(1)     Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 5 May 2017 be refused;
(2)     Leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 2 August 2018 be refused; and
(3)     Applications for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)     If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
(2)     When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
(3)     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
(4)     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and
(5)     Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1. The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 20 August 2019.

2. In Form 86, the applicant applies for leave to apply for judicial review against the Appeal Board’s Decision dated 2 August 2018, which is the Board’s further decision on BOR 2 risk (“the Board’s Further Decision”), the first decision dated 5 May 2017 (“the Board’s Decision”) being on the other three of Torture risk, BOR 3 risk and Persecution risk. Her application for the Board’s Decision is out of time. However, this Court has to consider the facts set out in the Board’s Decision when it considers the Board’s Further Decision. The applicant said that she intended to apply for leave to apply for judicial review of the Board’s Decision as well.

3. For the reasons stated above, leave was granted to the applicant to add the Board’s Decision in Form 86. The Court will consider the merits of her case in order to determine whether extension of time should be granted to the applicant for the judicial review of the Board’s Decision.

The applicant

4. The applicant is a national of Indonesia. She came to Hong Kong in 22 October 2012 as a domestic helper. She did not leave after her employment contract was terminated. She overstayed and was arrested by police on 11 March 2013. On 18 March 2013, she was convicted of the offence of breach of condition of stay and was sentenced to 4-week imprisonment suspended for three years. On 25 February 2014, she lodged a torture claim.

5. In support of her claim, she said that if refouled, she feared that she would be killed by a Muslim man who demanded to marry her and convert her religion from Christianity to Islam. She first received her mother’s call from Indonesia telling her that a Muslim man, whom she did not know, would like to marry her and that she should convert her religious belief from Christianity to Muslim. She ignored her mother because she was not interested in this man. For the past five years, her mother repeated the request and said that if she refused, the man would harm her if she returned to Indonesia and he would harm the family too. She changed her telephone number in order to avoid her mother’s call. She feared that she would be harmed if she returned to Indonesia.

The Director’s Decisions

6. The Director first considered her application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);
b.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
c.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7. By Notice of Decision dated 28 May 2015 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.

8. By letter dated 17 May 2017, the Director asked the applicant to supply further information in relation to BOR 2 risk – right to life, which would be assessed separately as well. The applicant did not give further information to the Director.

9. By Notice of Further Decision dated 5 June 2017 (“the Director’s Further Decision”), the Director rejected her BOR 2 risk claim as well.

The Board’s Decisions

10. The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 4 October 2016.

11. By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

12. The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusions below.

a.     This case was a private dispute without convention reason [43(A)(c)].
b.     As to the applicant’s allegation that there were police and government corruption and inaction, the problems were endemic and all nationals were subject to the same imperfect system of policing and general governance [43(A)(d)].
c.     The applicant failed to establish that she had a well-founded fear that she would be subjected to persecution for a convention reason [43(A)(f)].
d.     There was no suggestion that the applicant or any member of her family had suffered any harm [(43)(B)(b)].
e.     There was no suggestion that the Indonesian government had any adverse interest in the applicant [(43)(C)(b)].
f.     Internal relocation was an option to her [56].

13. The Board had, on 20 July 2017, received the applicant’s Notice of Appeal against the Director’s Further Decision. It decided that an oral hearing was not necessary because there was no new material provided by the applicant.

14. Having considered the evidence, the Board held that there was no evidence that showed that the applicant was subjected to BOR 2 risk. By the Board’s Further Decision, the Board refused the applicant’s appeal and confirmed the Director’s Further Decision.

Application for leave to apply for judicial review

15. The applicant filed Form 86 for leave to apply for judicial review of the Board’s Decisions.

16. In her affirmation in support of her application, she stated the grounds below.

1. Procedural impropriety – failure to conduct sufficient inquiry into the relevant country of origin conditions.

2. Procedural impropriety/irregularity – failure to conduct oral hearing for her BOR 2 claim and failure to provide sufficient opportunities for her to present her case.

3. Error/misdirection in law – failure to take into account the considerations of psychological strain and threats or her personally or threats to kill her.

4. No sufficient basis to conclude that she would not be at risk of being subjected to any kind of life risk upon refoulement.

DISCUSSION

17. The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.

18. Ground (1) is her opinion without any evidence in support of it. It fails.

19. The Adjudicator must have considered section 12 of Schedule 1A of the Ordinance and decided to assess her appeal on BOR 2 risk without a hearing. The Board was entitled to do so under the Ordinance. The Board had considered the facts of her case for the Board’s Decision. Since the applicant had not given any additional information to the Director, there was nothing for the Board to clarify with her for the Board’s Further Decision. Ground (2) fails.

20. Ground (3) fails because these issues were never raised with the Board at the appeal hearing.

21. Ground (4) fails too as the Board had given reasons in support of its decisions. The applicant has not been able to say why she considered those reasons were insufficient. Objectively viewed, they are valid reasons in support of the Board’s decisions.

22. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

23. Since the applicant’s application for judicial review of the Board’s Decision and the Board’s Further Decision has no reasonable prospect of success, I refuse to grant her extension of time for her application for leave to apply for judicial review of the Board’s Decision. I also refuse to grant her leave to apply for judicial review of the Board’s Further Decision. Accordingly, I dismiss her applications.

24. It is further directed that:

1.     If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
2.     When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
3.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
4.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and
5.     Liberty to apply.

Dated the 14^th day of May 2020

	(Mike Mak)
	for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notesfor the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 14/5/2020 Boinem Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14/5/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1663/15/6/49/I100; and BOR 860/17/7/50/I71 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

BOINEM v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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