RE HENI WAHYUNINGTIAS

CAMP 256/2022

[2023] HKCA 296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 256 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 905/2019)

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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 4 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 15 March 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 27 July 2018 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 22 November 2012 as a foreign domestic helper, but after the premature termination of her contract, she overstayed and was arrested on 14 September 2017.  On 18 September 2017, she lodged a non-refoulement claim.

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

4.  By a Notice of Decision dated 27 July 2018, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 25 February 2019, the Board dismissed the applicant’s appeal by its Decision.  The Board found that there was no merit in the applicant’s claim, and that, inter alia, no serious injuries had been inflicted on the applicant by the loan shark.  In any event, internal relocation was a viable option for her, and state protection was also available to her.

The Judge’s decision

6.  The applicant filed a Form 86 on 2 April 2019 seeking to judicially review the Board’s Decision, and her grounds were summarised by the Judge at [13] of the CALL-1 Form as follows:

“(1) she was not provided with legal assistance for the appeal hearing before the Board;

(2) the hearing bundle for her appeal was only given to her just a few days before the hearing; the contents were in English and there was insufficient time for her preparation for the hearing and there was no interpreter who could assist her;

(3) the Board did not notify her by phone despite her prior request;

(4) she was therefore confused at the hearing;

(5) the Board had relied upon the source of news that is not officially recognized or it is simply hearsay or on outdated authorities resulting in it making groundless speculations;

(6) BOR2 risk was assessed without screening by the Immigration Department; and

(7) the Director or the adjudicator made their decisions without proper inquiry or carefully understanding her situation and they should tour her country to understand her situation.”

7.  In her supporting affirmation, she repeated the dangers she may face if she returned to Indonesia, and repeated her complaints regarding the lack of legal representation at the hearing before the Board.

8.  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 the following reasons in refusing leave to apply for judicial review at [14] to [26] of the CALL‑1 Form:

“14.   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).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she had nothing to add to her evidence in her affirmation.

16.  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.’

17.  The grounds under paragraph 12 above do not advance her application.

18.  Ground (1) fails because the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage [22].

19.  Ground (2) and Ground (4) fail as she could have told the Board that she did not have sufficient time for her preparation for the hearing. On record, there was no such application. On the face of the Board’s Decision, there was no evidence to show that she was unable to understand the hearing. The Board was able to find the facts through questioning and answers from the applicant. As to interpreter service, the Court of Appeal held in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

‘18. … Either the applicant is himself conversant with the English language or he has access to language assistance of his own if he deemed necessary. Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.’

20.  Ground (3) fails as the Board has no obligation to inform her of its Decision being available by phone. The Board did send its Decision to her at her last known address.

21.  Ground (5) fails as it is only her opinion without any evidence in support.

22.  Ground (6) fails because under the Ordinance, the immigration officer will interview the applicant for clarifying the facts, which had been done for her other claims. It is unnecessary to have another interview with her since she relies on the same facts for her other claims.

23.  Ground (7) fails as the Director or the adjudicator can rely upon the country of origin information compiled by other countries for the various situations of her country. It is unnecessary for the Director or the adjudicator to visit her country for this purpose.

24.  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.

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

CONCLUSION

26.  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 as stated in her Form 86 was at Tougha Mansion, 502 Nathan Road (“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 4 April 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 4 April 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 11 May 2022 seeking extension of time to appeal, in which her address was stated to be the Address.  In her supporting affirmation filed on the same date, she deposed that she “did not get court letter in time”.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 22 June 2022[6].

13.  By a summons filed on 18 July 2022, the applicant renewed her application for an extension of time to appeal before this court.  In the summons and in her supporting affirmation, the applicant stated that she disagreed with the Judge’s “decision”.

14.  In her written submissions lodged on 1 August 2022, the applicant submitted that her “claim is very very special”, and that she “did not get justice from the High Court”. 

Discussion

15.  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.

16.  As noted above, the Judge’s Decision was sent to the last known address of the applicant and was not returned undelivered.  The inference to be drawn is that she has received that letter from the court, and she has had knowledge of the Judge’s decision within the period in which she should have lodged her intended appeal.

17.  There is no explanation on the part of the applicant as to how and when she came to learn of the Judge’s decision dated 4 April 2022.

18.  In the circumstances, we reject the applicant’s explanation for the delay in lodging her intended appeal.

19.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.  The applicant has not 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. 

21.  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.

22.  Regarding the applicant’s complaint that she did not have the benefit of legal representation, 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.  In this regard, we note that the applicant was assisted by a lawyer in submitting her non-refoulement claim form, and presenting her case, to the Director.

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.  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 18 July 2022 is accordingly dismissed.