RE IMBUH KARINA BINTI YAMRONI

CAMP 61/2019

[2019] HKCA 950

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 61OF 2019

(ON AN INTENDED APPEAL FROM HCAL 254/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 4 August 2017, Deputy High Court Judge Woodcock (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 22 February 2017.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) rejecting the applicant’s claim for non-refoulement protection in Hong Kong.

2.  The applicant failed to apply to the court for leave to appeal against the said decision within the 14-day statutory time limit.  She only did so on 18 January 2019, over 17 months after the deadline.  After the Judge dismissed her application for leave to appeal out of time on 20 March 2019, the applicant took out the present summons on 8 April 2019.

Background

3.  The applicant is a national of Indonesia.  She had been in Hong Kong to work as a domestic helper since 29 May 2008.  Her last visa permitted her to remain in Hong Kong as such until 22 January 2015 or within 2 weeks after the termination of her employment contact.  Her employment was terminated on 29 January 2013.  She did not depart and has overstayed in Hong Kong since 13 February 2013.  She was arrested by the police on 21 September 2013.  She was found guilty of the offence for breach of stay condition by overstaying, and was sentenced to one-month imprisonment suspended for 3 years.  She raised her torture claim on 14 December 2013. Her torture claim was treated as a non-refoulement claim upon the commencement of the unified screening mechanism.

4.  The applicant’s claim is based on the alleged fear that she would be harmed or killed by the villagers because she failed to pay them wages.  The factual background of this case was summarized by the Judge in [8] – [10] of the Form CALL-1 dated 4 August 2017.

5.  By a notice of decision dated 22 December 2014, the Director assessed the applicant’s claim on the BOR 3 risk[1], the persecution risk[2], and the torture risk[3], and determined it against the applicant.

6.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 2 November 2015, during which the applicant elected to testify. After hearing the applicant, the Board found that the villagers were not public officials and their claim against the applicant was not legitimate.  The applicant did not suffer any injuries that attain the minimum level of severity.  The Board also found that state protection was available and internal relocation was viable.  Accordingly, the applicant’s appeal/petition was dismissed on 22 February 2017.

The Judge’s decisions

7.  On 31 May 2017, the applicant applied to the court for leave to apply for judicial review against the Board’s decision. 

8.  An oral hearing was listed for 26 July 2017. About 13 days prior to the scheduled hearing, the Director of Legal Aid filed a memorandum on 13 July 2017 notifying the court that the applicant had applied for legal aid. 

9.  Notwithstanding the said memorandum, the Judge proceeded with the hearing as scheduled.  At the hearing, the Judge lifted the legal aid stay and proceeded with the leave application. 

10.  After considering the decision of the Board, the Judge refused to grant leave to the applicant to apply for judicial review on 4 August 2017.  Her reasons in doing so were set out in [16] – [22] of the Form CALL-1 as follows:

“ 16. The applicant raised the Right to Life in her grounds of review, following Article 2 of the Hong Kong Bill of Rights Ordinance Cap 383, (“BOR 2”). This ground was never raised before the Director or the adjudicator of the TCAB. Article 2 safeguards the right to life, “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

17. I refer myself to Osman v UK (1998) 29 EHRR 245 at paras 115 116 where that court finds a State should take appropriate steps to prevent a risk to life by implementing effective criminal law provisions supported by law enforcement machinery. However, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of the applicant from the criminal acts of here, the disgruntled villagers and that they failed to take measures within the scope of the powers which, judged reasonably, might have been expected to avoid that risk.

18. So far as this case is concerned, considerations under the present USM includes those considerations for the contemplation of an Article 2 BOR risk. There is no need to treat this right separately. The adjudicator, in my view correctly, found the applicant has failed to establish personal risk or a genuine risk of serious harm if returned. There was no evidence she may face serious harm as a result of the consent or active/passive acquiescence of any public officer or person in any official capacity. The applicant failed to establish the necessary requirement under this risk; her life was not at risk. There was no evidence that the government knew or ought to have known her life was at risk and lastly it was found by both the Director and adjudicator the Indonesian government was able to provide reasonable protection to its citizens; a claim under Article 2 BOR failed.

19. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. She analysed the material, claims and evidence carefully, logically and with caution. She also applied the correct standard of proof. The applicant’s complaints against her and the procedure undertaken are not made out. My findings also applied to the Director’s decision.

20. I found no substance in the grounds of this application. The applicant had nothing to add or supplement during the oral hearing except to say her problems at home have not been resolved and she asks for help to stay here in Hong Kong until it is safe to go home. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated. For example, in the hearing before the adjudicator there is no record of any complaint from the applicant about her previous legal representation and her confusion. An interpreter was provided and at the applicant’s disposal; she confirmed she understood the procedure at the hearing. The adjudicator in her decision does refer to COI material she assessed and examined. The applicant’s criticism here is, as it is with most, but a bare assertion.

21. I do not find any grounds that show there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

11.  Instead of appealing against the said judgment, the applicant took out another application for leave to apply for judicial review.  The second leave application was made under HCAL 134/2018, and was rejected by Deputy High Court Judge Bruno Chan on 3 January 2019 (see: [2018] HKCFI 2812). 

12.  About 15 days after the second refusal of leave to apply for judicial review, the applicant took out a summons on 18 January 2019 for an extension of time to appeal against the first refusal. 

13.  The Judge heard the application for extension of time on 1 March 2019.  By a decision handed down on 20 March 2019 ([2019] HKCFI 635), the Judge refused to grant an extension of time for the following reasons:

“ 6. The application was over 17 months late, a substantial delay. Her explanation that she was unaware of the law and time limits imposed to appeal is no excuse, ignorance of the law is no excuse. I find no reasonable explanation for the delay in bringing the intended appeal.

7. In any event, I find there is no merit nor any real prospect of success in the intended appeal. There are no grounds of review nor any complaint of my decision to refuse leave in this application. The applicant had nothing to add in the oral hearing.

8. Having considered the length of delay and the lack of merit in this application, it would not be in the interests of justice to grant an extension of time.  The applicant’s summons dated 18 January 2019 is dismissed.”

The present application

14.  The applicant took out the present summons (which was dated 4 April 2019) on 8 April 2019.  We treat it as if it were a renewed application for an extension of time for appealing.

15.  In an affirmation filed on 3 May 2019, the applicant deposed that:

“ As I don’t know english, I don’t know the letter meaning and what I need to do next. All I can do is to find my friend to explain and they also translation wrong message to me, therefore I do know I need to file the form 86.” (sic)

16.  In the written submissions lodged on 10 June 2019, the applicant stated that:

(a) She was threatened by the villagers and the danger she faced was obvious;

(b) Indonesian government was corrupt and inefficient, and could not manage the overwhelming problem relating to loan sharks; and

(c) She was under immense psychological and emotional stress, and the Board failed to consider the psychological and emotional impact she was facing.

Legal principles

17.  Order 59, rule 2B(3) of the Rules of the High Court (Cap 4A) provides that, where the Court of First Instance refuses an application for extension of time for appealing, a further application for leave to appeal may be made to the Court of Appeal within 14 days from the date of the refusal.  In the present case, the Judge refused to grant an extension of time on 20 March 2019.  Accordingly, the applicant should have made her renewed application before this Court on or before 3 April 2019. However, she did not do so until 8 April 2019.  She was late by 5 days.

18.  In considering whether to extend time for leave to appeal against an interlocutory decision, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

19.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if she has merit in the intended appeal.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the Judge.

20.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases.  For the purpose of this application, the salient principles are as follows:

(a) The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(b) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge or for running arguments which could and should have been raised but not raised before the Judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(c) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 it is a fresh application for judicial review. 

Discussion

21.  As mentioned earlier, it took the applicant over 17 months to apply for leave to appeal against the decision refusing to grant leave to her to apply for judicial review.  The delay is very substantial.

22.  We have also mentioned earlier that the applicant had made a second application for leave to apply for judicial review against the same decision of the Board.  This is an abuse of process: see Re Mamun Moihammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1]; Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571 at [22]; and Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763 at [16].  The applicant cannot rely on her own abuse of the process to account for the delay.  We therefore hold that the applicant’s delay was inexcusable.

23.  In the present application, the applicant failed to demonstrate any viable ground that would warrant a reversal of the judgment for refusing leave to judicial review. 

24.  As explained above, the assessments of the COI materials and state protection are within the province of the Board.  The court will not intervene by way of a judicial review unless it can be shown that the decision contains errors on public law grounds.  As far as we can see there is no such error in this application. 

25.  The applicant’s grounds for seeking reliefs were general assertions without any specific or cogent evidence in support.  In our view, they cannot constitute viable grounds challenging the Board’s decision: see Re Mizan Sikder [2019] HKCA 20 at [17].

26.  We agree with the Judge that leave to apply for judicial review should be refused.  We do not see any prospect of success in the intended appeal.

27.  It would be futile to extend the time for a hopeless appeal.  The summons filed on 8 April 2019 is dismissed accordingly.

28.  We also order that pursuant to Order 59, Rule 2A(8), the Rules of the High Court, no party may request this determination be reconsidered at an oral hearing inter partes.