RE WIWIK SUNDARIYATI

CAMP 175/2023, [2025] HKCA 420

On an intended appeal from [2022] HKCFI 1158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 175 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2052/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 22 April 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 18 September 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 29 December 2017 rejecting the applicant’s non‑refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 10 February 2011 as a foreign domestic helper, but she overstayed after the premature termination of her employment contract and was arrested by the police on 20 July 2017.  Thereafter, she raised a non-refoulement claim by way of written significations dated 1 and 14 August 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by her husband.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 29 December 2017, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 6 July 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing her appeal, the Board found numerous inconsistencies on material aspects of the applicant’s evidence, such as in respect of the assaults she allegedly suffered under the hand of her husband.  In any event, the Board found that even if the requisite risk of harm from her husband existed, adequate state protection was available to her in Indonesia, as well as suitable options of internal relocation (such as to Jakarta or Surabaya), which would minimise or reduce such risk.

The Judge’s decision

6.  The applicant filed a Form 86 on 27 September 2018 seeking to judicially review the Board’s Decision without setting out any grounds for review.  In her supporting affirmation filed on the same date, she merely exhibited a copy of the Board’s Decision.

7.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave his reasons in refusing leave to apply for judicial review at [10] to [13] of the CALL‑1 Form:

“[10]  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh  Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

[11]  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if true 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.

[12]  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

[13]  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

The present application for extension of time to appeal

8.  The applicant stated in her Form 86 that her address of service at the time was at “Castle [Peak] Road”, Cheung Sha Wan.  On 9 August 2021, the applicant informed the court that she has moved to No.40 Jordan Road, Yau Tsim Mong (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 22 April 2022, which was not returned undelivered.

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 22 April 2022.

10.  The applicant thereafter took out a summons in the Court of First Instance on 14 November 2022 seeking extension of time to appeal, in which her address was stated to be at Lo Wu Correctional Institution (“the Institution”).  The applicant did not appear to have filed an affirmation in support of the summons.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 6 April 2023[6].

12.  By a summons filed on 2 May 2023, the applicant renewed her application for extension of time to appeal before this court.  In her supporting affirmation, she exhibited a statement which had clearly not been written in support of her case, as the statement, inter alia, refers to the applicant as a male whose home country is Nepal.

13.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge any written submissions with the court. She is therefore deemed to have abandoned her right to rely on the same.  

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

15.  As noted above, the Judge’s decision was sent to the last known address of the applicant at the time (which was the Address) and was not returned undelivered.  The inference which may be readily drawn is that she has received that letter from the court, and she has had knowledge of the Judge’s decision within the period she was permitted to lodge the intended appeal.

16.  In any event, it is incumbent upon the applicant to update the court of her correspondence address promptly, in this case her move to the Institution (as well as informing the court of the details regarding her transfer to and detention at the Institution), and she must bear the consequences of her failure to do so.  Further, the applicant failed to inform the court of how and when she had come to learn of the Judge’s decision.

17.  In the circumstances, we consider that the applicant has failed to provide any reasonable explanation for the delay in lodging her intended appeal.  

18.  Given the relatively short, but not insignificant, delay of around 2 weeks in the applicant’s renewal of the application before this court, we intend to focus on the merits of the intended appeal.

19.  The applicant has not in any event condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

20.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

21.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.  

22.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 2 May 2023 is accordingly dismissed.