CACV 34/2023, [2023] HKCA 635
On Appeal from [2023] HKCFI 249
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 34 OF 2023
(ON APPEAL FROM HCAL NO 3581 OF 2019)
____________
BETWEEN |
| | SYARIFAH | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/ | Putative |
| | NON-REFOULEMENT CLAIMS | Respondent |
| | PETITION OFFICE | |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
____________
| Before: | Hon G Lam JA and Lisa Wong J in Court |
| Date of Hearing: | 18 April 2023 |
| Date of Judgment: | 5 May 2023 |
_________________
J U D G M E N T
_________________
Hon G Lam JA (giving the Judgment of the Court):
Introduction
1. This is an appeal against the decision of Deputy High Court Judge To (“Judge”) dated 6 February 2023 refusing to extend time for the applicant to apply for leave to apply for judicial review and dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 17 April 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 7 August 2018 rejecting her non-refoulement claim.
Background
2. The applicant is an Indonesian national born in 1983. She had worked in Hong Kong before, but left after her last employment contract as a domestic helper was prematurely terminated on 18 January 2015. The applicant came to Hong Kong again on 7 August 2015, as a visitor, but had overstayed her permission to remain since 7 September 2015. On 27 October 2015, she was arrested by the police and referred to the Immigration Department. On 31 October 2015, she was convicted of the offence of breach of condition of stay by overstaying. She lodged a claim for non-refoulement protection on 4 November 2015. Her claim was based on the fear that if she returned to Indonesia, she would be harmed or killed (i) by her stepmother and her brother because she did not send enough money to her stepmother, and (ii) by her creditor because she had failed to repay the debt borrowed under her name by her stepmother.
3. The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4] By a notice of decision dated 7 August 2018, the Director rejected the claim.
4. The applicant appealed to the Board against the Director’s decision. The Board held a hearing on 13 February 2019 but the applicant failed to attend it or provide an explanation for her absence. In its written decision issued on 17 April 2019, the Board explained the concerns that it had regarding the applicant’s claims and the questions it would have raised with her had she attended the hearing. The Board concluded that because of the applicant’s failure to attend the hearing to answer the Board’s questions, she was unable to establish the details of key aspects of her claims. Accordingly, the Board dismissed the applicant’s appeal.
5. On 21 and 24 October 2019, the applicant made a request to the Director for permission to make a subsequent claim for non-refoulement protection. This request was rejected by the Director on 11 December 2019.
The Judge’s decision
6. Meanwhile, on 2 December 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form. In the accompanying affirmation, the applicant said she could not return to Indonesia and repeated the main allegations in her claim. The application was lodged long after the expiry of the 3-month period prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), but the applicant did not give any explanation of her delay.
7. The Judge held a hearing of the application on 11 January 2023, and issued his decision on 6 February 2023, refusing to extend time for the applicant to apply for leave for judicial review, and dismissing the application for leave to apply for judicial review. The reasons were set out at [13] – [16] of the Form CALL‑1 as follows:
“ 13. The Applicant did not put forward any grounds of application in her Form 86. In her supporting affirmation, she said she could not return to Indonesia and repeated the gist of her claim, ie the violence from her stepmother and brother and the threat from the moneylender. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to discharge the burden of proving her entitlement to protection under any of the four grounds under the USM. By reason of the legal principle as explained in the above paragraph, this is not permissible in an application for judicial review.
14. The above legal principle was explained to the Applicant at the hearing. Attempt was made to solicit from her possible criticisms of the Decision on the basis errors of law, procedural unfairness or irrationality. All that she could offer was to repeat her claim that she could not return to Indonesia because of the threat from the moneylender, that she wanted to stay in Hong Kong, and in particular for the purpose of undergoing an operation on her hand. For the same reason as mentioned above, these are not valid grounds for challenging a decision by way of judicial review. Also, her medical needs is not a reason for granting non-refoulement protection. In the absence of specific grounds or grounds with sufficient particulars, in an application for leave to apply for judicial review the Court would focus its attention on possible criticism of the Decision on the basis of error of law, procedural unfairness and irrationality in the Decision.
15. Having rigorously examined the 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 USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board found the information provided by the Applicant lacking in particulars and could not constitute sufficient evidence to support her claim for non-refoulement protection. That is a finding of fact within the province of the Board which the Board is entitled to make on the basis of the inadequacy of the evidence.
16. The Board found it necessary to make further inquiries from the Applicant to solicit from her information and evidence to support her claim. For that purpose, it scheduled a hearing and attempted to contact the Applicant two weeks before the hearing. The telephone number she gave to the Board in her Notice of Appeal and the number she gave to the Immigration Department were not operative. She had been duly served the notice of hearing. She had received the hearing bundle which was served on her by registered mail. That indicates she could be reached on the address she provided and probably had received the notice of hearing. She did not attend the hearing. She had been invited to explain her absence. She did not respond. The Board had done all it could to discharge its duty of joint endeavor in assisting the Applicant to establish her case. Even as of now, non-receipt of the notice of hearing of the appeal has never been raised as an explanation for her absence or a reason for applying for judicial review. The Board had acted with un-reproachable fairness. The Applicant’s conduct reflects a lack of will to prosecute her claim which in turn reflects a lack of merit in her application. She bears the burden of proving her entitlement to protection. On the limited or inadequate evidence available, the Board could not be satisfied that she had discharged her burden of proving the factual basis in support of her claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact solely 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. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. Hence extension of time for filing the Form 86 was refused. The application for leave to apply for judicial review was refused.”
The appeal
8. In her notice of appeal filed on 8 February 2023, the applicant simply stated that she wanted to challenge the decision. In her skeleton argument lodged on 20 March 2023, she stated that her enemies in Indonesia were powerful, that they bribed the police, and that they wanted to kill her. She said that the Director’s and the Board’s decisions rejecting her claim were unreasonable and painful for her. She asked for her claim to be sent to the Court of Final Appeal (which seems to be based on a misunderstanding that she was seeking permission to appeal to the Court of Final Appeal).
9. At the hearing, the applicant repeated her wish to remain in Hong Kong and also mentioned that she was receiving medical treatment for her hand and ankle.
Discussion
10. In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration;[5]Re Md Shohel Sheak;[6] and Re Limbu Birkhaman.[7] In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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 the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.
11. In the present case, the Board held a hearing of the applicant’s appeal, but the applicant did not avail herself of the opportunity to establish her claim before the Board. Given the various concerns and questions that the Board had in relation to the applicant’s allegations, it understandably came to the conclusion that it was not satisfied that the applicant had established any of the facts she asserted. This is a conclusion perfectly open to the Board on the materials before it and for the reasons it gave. The applicant has wholly failed to show any error in principle in the Board’s decision or any viable grounds for impugning the Board’s decision by way of judicial review.
12. Equally the applicant has wholly failed to show any error in the decision of the Judge. She has not been able to advance any viable ground of appeal in her notice of appeal or skeleton argument or her oral submissions. We are satisfied that the Judge was right to refuse to extend time and to refuse leave to apply for judicial review.
13. Accordingly, the applicant’s appeal is dismissed.
(Godfrey Lam)
Justice of Appeal | (Lisa Wong)
Judge of the Court
of First Instance |
The Applicant, unrepresented, acting in person
[1] 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).
[2] 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.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).
[4] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] [2018] HKCA 524 at paragraph 14
[6] [2018] HKCA 714 at paragraph 13
[7] [2019] HKCA 50 at paragraph 11