RE SITI BADRIYAH

CAMP 16/2023, [2024] HKCA 24

on appeal from [2022] HKCFI 1688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 16 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 1044/2019)

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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 KW Lung (“the Judge”) dated 25 November 2022 refusing to extend time for the applicant to appeal against his decision dated 23 June 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was apparently against the decision of the Director of Immigration (“the Director”) dated 26 January 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”), the applicant’s appeal against which had been dismissed by the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 12 April 2019 (“the Board’s Decision”).

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong to work as a foreign domestic helper in 2006, but she overstayed and was arrested by the police on 27 May 2015. Thereafter, she lodged a non-refoulement claim on 8 June 2015.

3.  The applicant’s claim was based on a fear of being killed or harmed by a loan shark.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5]. 

5.  The applicant appealed to the Board against the Director’s Decision.  After a hearing on 12 November 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing her appeal, the Board found that there were inconsistencies in the applicant’s primary contentions which were central to her claim, such as the allegation that her husband had “assigned a loan … for her to repay”.  The Board found that there was no real risk of harm to be suffered by the applicant at the hands of the loan shark should she be refouled to Indonesia.

The Judge’s decision

6.  The applicant filed a Form 86 on 17 April 2019 seeking to judicially review the Director’s Decision.  The Judge rightly treated this as an intended judicial review of the Board’s Decision, which superseded that of the Director.

7.  The applicant did not set out any grounds for review in the Form 86.  In her supporting affirmation, the applicant merely stated that she would like to “reject and review” the Director’s Decision.

8.  After summarising the facts and background of the case, and giving due consideration to both the Board’s and the Director’s Decisions, 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 [18] of the CALL-1 Form:

“12.     The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.   The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.   In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation 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.’

15.   The applicant has not been able to raise any valid ground to challenge the Board’s Decision.

16.   The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

18.   I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

The present application for extension of time to appeal

9.  The applicant’s address at the time she filed the Form 86 was at On Ning Road, Yuen Long (“the On Ning Road Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the On Ning Road Address on 23 June 2022, and was not returned undelivered.

10.  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 23 June 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 25 October 2022 seeking an extension of time to appeal, in which her address was stated to be at Mau Tau Street, Yuen Long (“the Mau Tau Street Address”).  In her supporting affirmation filed on the same date, she claimed that she did not receive the court’s letter enclosing the Judge’s decision and that she was informed of the same by her immigration officer.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 25 November 2022[6]. 

13.  By a summons filed on 13 January 2023, the applicant made her present application for an extension of time to appeal before this court.  In the summons and her supporting affirmation, the applicant sought an extension of time to appeal against the decision given by the Judge on “25-Nov-2022”, being the Judge’s refusal to grant an extension of time for her to appeal against his decision dated 23 June 2022. Although in her summons the applicant purported to seek to appeal against the decision of the Judge dated 25 November 2022, we shall treat the application as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 23 June 2022, by which leave for judicial review was refused.  

14.  The applicant in her summons and the supporting affirmation merely started that she sought an extension of time to appeal, and that she disagreed with the “decision maker authorities”.

15.  In her written submissions lodged on 27 January 2023, the applicant submitted that the Director’s Decision was reached unfairly, and that she did not receive “proper legal and language assistance” in the processing of her claim.

16.  The applicant thereafter, without leave of the court, filed further written submissions on 22 August 2023.  As those submissions were lodged without leave, the usual course would be for this court to disregard the same in the determination of the present application.  In any event, in those submissions the applicant merely made references to the well-established principles in, inter alia, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, but failed to elaborate on whether and, if so, how these trite principles had not been applied in the in processing of her non-refoulement claim.

Discussion

17.  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.

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

19.  Further, there was no explanation on the part of the applicant as to exactly when she eventually came to learn of the Judge’s decision.  Even if the applicant had changed her address, it was incumbent upon the applicant to notify this court of such a change to her correspondence address, and she must bear the consequences of failing to do so.

20.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.  Further, the delay of around 4 months by the applicant is substantial, and her application is liable to be dismissed on this basis alone.  We have nonetheless proceeded to consider the merits of the intended appeal.  

21.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to how 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.   

22.  The applicant has also 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.  

23.  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.

24.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

25.  Further, the applicant’s complaint of prejudice by reason of her lack of proficiency in English is of little or no merit.  We note that she was able to, either by herself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

26.  For these reasons, we cannot 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 13 January 2023 is accordingly dismissed.