CACV 212/2023, [2023] HKCA 1235
On Appeal from [2023] HKCFI 1703
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 212 OF 2023
(ON APPEAL FROM HCAL NO 1124 OF 2022)
____________________
| BETWEEN | | |
| | SUGIYATI | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
____________________
| Before: | Hon Chow JA and Lisa Wong J in Court |
| Date of Hearing: | 31 October 2023 |
| Date of Judgment: | 21 November 2023 |
____________________
JUDGMENT_
____________________
Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 30 June 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review.
BACKGROUND
2. The Applicant is a national of Indonesia. She last arrived in Hong Kong on 17 February 2016 to work as a foreign domestic helper with permission to remain until the expiration of her employment contract on 17 February 2018 or within 14 days of its termination, whichever was the earlier. Upon the expiration of her employment contract on 17 February 2018, she did not depart and overstayed in Hong Kong illegally. She was arrested by police more than 2 years later on 25 July 2020. She then raised a non-refoulement claim on the basis that if she returned to Indonesia, she would be harmed or killed by her parents’ creditor over their unpaid debts. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.
3. By a Notice of the Director of Immigration (“the Director”) dated 14 May 2021 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The Director’s reasons for his decision have been summarised by the Judge at §7 of the CALL-1 Form, as follows:
“In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her parents’ creditor and followers upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her parents to repay their debts, that in any event it was a private monetary dispute between her parents and their creditor without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (‘COI’) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 275 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her parents’ creditor to locate her.”
4. The Applicant appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”), and attended an oral hearing before the Board on 4 February 2022. At the hearing, she applied to withdraw her appeal, claiming that it was safe for her to return to her home country. Upon her confirmation that she was fully aware of the consequences of the withdrawal, and upon being satisfied that her decision was freely made and she had a good reason for her withdrawal of the appeal, the Board in writing on the same day directed that her appeal/petition be withdrawn with no further action to be taken in respect of her non-refoulement claim. The Board also stated that the Director’s Decision would remain.
THE JUDGE’S DECISION
5. On 21 October 2022, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision, notwithstanding the fact that she had previously withdrawn her appeal against it. No ground for seeking relief was given in the Form 86 or in her affirmation filed on the same date. On 27 April 2023, the Applicant filed an affirmation requesting for leave to withdraw her application, claiming that she wanted to return home as her problem had been “solved”.
6. On 30 June 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[10] Given the fact that having earlier already withdrawn her appeal to the Board on the basis as recorded and stated in its decision dated 4 February 2022, and in the absence of any evidence to the contrary from the Applicant in her present application, it seems to me that it was a valid withdrawal or abandonment of the appeal by the Applicant in the sense of being the result of a deliberate and informed decision on her part, and hence the appeal is no longer extant and the Board has become functus officio with no further jurisdiction to take any step regarding the appeal: see Re Das Purnima Rani[2019] HKCA 669, and therefore the only viable option for the Applicant, for whatever reason, to now challenge the Director’s decision is by way of her present application for leave to judicially review that decision rather than the Board’s decision.
[11] However, regardless as against either decision, the Applicant was by now clearly out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.
[12] In the Applicant’s case, given that she has never provided any explanation as to why she has now changed her mind after having validly withdrawn her appeal against the Director’s decision some 10 months ago, but even if I were to assume, on the factual basis of her claim, that something has since occurred that it is no longer safe for her to return to her home country, I am still unable to see any reasonably arguable basis for her to challenge either decisions.
[13] As noted above, the Director was clearly correct to find even on the factual basis of the Applicant’s own case that any risk arising from what was clearly a private monetary dispute between her parents and their creditor and without any official involvement that it would be negated by both state/police protection and internal relocation available being available to the Applicant upon her return to Indonesia, and as such, in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in his decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge or any merits in her intended application.
…
[15] In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
[16] Having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on his part to apply high standards of fairness in his consideration and assessment of the Applicant’s claim.
[17] Furthermore, the Applicant has recently filed an affirmation requesting to withdraw her application as her problem has been solved and that she now wants to return to her home country.
[18] In the premises, as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that there is now no problem for her to return to Indonesia, I accordingly dismiss her leave application.”
THIS APPEAL
7. In her Notice of Appeal dated 19 May 2023, the Applicant merely stated the following:
“I want to challenge the decision.”
8. In her 4-page written submissions dated 12 October 2023, the Applicant complained that the Adjudicator “totally destroy[ed her]” and “made many error[s]”, and the High Court “did not look [at her] argument” and gave “a one eyes judgment” and did not consider “all [her] points”. She also complained that there was no oral hearing of her application before the High Court.
9. At the hearing of the appeal, the Applicant had nothing to add.
DISCUSSION
10. Having regard to the fact that the Applicant applied to the Board to withdraw her appeal and to the court to withdraw her application for leave to apply for judicial review, the Applicant’s complaints against the decision of the Board and the decision of the Judge are obviously baseless and untenable. As for the absence of an oral hearing before the Judge, the Applicant did not request for an oral hearing of the leave application and the Judge was entitled to deal with the application on paper.
11. The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.
12. The Applicant’s appeal against the Order has no merit and is dismissed.
13. In passing, we note that, as pointed out by the Judge at §10 of the CALL-1 Form, since the Applicant’s appeal had been validly withdrawn with the Board’s leave, the Board became funtus officio and the Applicant’s only option was to challenge the Director’s Decision rather than the Board’s Decision by way of judicial review, which was what the Applicant did by her Form 86. Further, it does not appear that the Judge ever made any order to amend the Form 86 such that the Board became the Putative Respondent and the Director became the Putative Interested Party. However, in the sealed order of the Judge dated 30 June 2023, the Board and the Director are named as the Putative Respondent and Putative Interested Party respectively, and it is stated that extension of time for leave to apply for judicial review of the Board’s Decision dated 4 February 2022 was refused. Strictly speaking, the Director should remain as the Putative Respondent, and it is unnecessary to make any order refusing to extend time for applying for leave to apply for judicial review of the Board’s Decision in the sealed order. Nevertheless, the Judge was plainly correct to dismiss the Applicant’s application for leave to apply for judicial review at paragraph (2) of the sealed order. We make an order that the sealed order of the Judge shall be amended accordingly.
(Anderson Chow)
Justice of Appeal | (Lisa Wong)
Judge of the Court of First Instance |
The Applicant, appearing in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the 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.
[4] 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.