RE ARIS AYUK WAHYUNINGTYAS

CAMP 18/2020

[2021] HKCA 342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 18 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 23 OF 2018)

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J U D G M E N T

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

Introduction

1.  By the decision of 17 June 2019 (“the Decision”)[1], Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 28 December 2017.  In the Board’s decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 16 May 2017 rejecting the applicant’s non-refoulement claim.

2.  On 8 October 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 17 December 2019, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 24 January 2020, the applicant sought leave from this Court to appeal against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 29 April and 16 June 2020, the applicant was directed to lodge her written submissions in support of her summons on or before 2 July 2020.  The applicant failed to lodge her written submissions as directed. 

5.  The Registrar further directed that unless the applicant lodged her written submissions by that time, she would be debarred from lodging any written submissions, and her application for extension of time to appeal shall be determined on the basis of the summons and the affirmation filed in support. 

6.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the supporting affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

7.  The applicant is a national of Indonesia.  She came to Hong Kong on 31 August 2010 as a domestic helper.  Her contract was prematurely terminated on 7 October 2010.  However, she did not depart and had overstayed since 22 October 2010.  She gave birth to her daughter in Hong Kong on 26 February 2011.  She surrendered to the Immigration Department on 2 May 2012.   She lodged her non-refoulement claim by way of written representation on 22 January and 17 October 2013 on the basis that if she were to return to Indonesia, she would be harmed or killed by her parents for bringing disgrace to the family by having a child out of wedlock.  The factual background was succinctly summarized by the Judge at the Decision at [1] – [5].

8.  By a Notice of Decision of 16 May 2017, the Director assessed the applicant’s claim on all applicable grounds and determined them against her.  The Director’s decisions covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

9.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  After the hearing on 15 November 2017, for the reasons set out in [30] to [43] of its decision, the Board dismissed the appeal on 28 December 2017.  In gist, the Board accepted the applicant as a credible witness that she received warning from her parents not to be an unmarried mother and that her parents were furious when they learnt about her daughter became an unmarried single mother.  Yet, it was not accepted that she had received any threat from the villagers of her home town for being a single mother.  Further, with the passage of time and the absence of any history of violence in her family, the Board did not consider there would be a real chance of her parents harming her or her daughter or that they would face any social harassment or discrimination in Indonesia as a single mother or a child without a father, or that any such harm that would amount to any of the proscribed harm.  For the aforesaid reasons, the Board concluded that the applicant’s claim had failed on all applicable grounds.

10.  On 5 January 2018, the applicant filed a Form 86 together with her supporting affirmation for leave to apply for judicial review of the Director’s and the Board’s decisions.  She did not provide any ground for seeking relief and merely stated as follows:

“I would like to apply for judicial review as my problem is still not solved. Please review my case as my life will be in danger if I go back to my country. Indonesia is a Muslim country and if I go back I and my daughter will be persecuted. Please review the decision by Immigration and Torture Claims Appeal Board and save our lives.”

The Judge’s decisions

11.  The application was considered on papers and the Judge dismissed the application on 17 June 2019 after due consideration of the decisions of the Director and the Board.  The reasons were set out at [11] to [14] of the Decision:

“11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 Re Litoun Mounsy [2018] HKCA 537.

12. In the applicant’s case, the Board accepted her alleged fear of harm from her parents if refouled to Indonesia but rightly rejected her non-refoulement claim on all applicable grounds for the careful and detailed analysis and reasons set out in paragraphs 25 – 52 of its decision, and in the absence of any legal error shown by the applicant in the decision, I am unable to see any prospect of success in her intended challenge.

13. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, and which decision was confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14.  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.”

12.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 1 July 2019.  On 8 October 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

13.  The summons was heard on 21 November 2019 and by the Leave Decision made on 17 December 2019, the Judge refused the application for leave to appeal out of time.  The Judge took the view that the applicant’s delay of two months could not be regarded as insignificant, for which she simply claimed in her supporting affirmation that she did not receive the Decision within a reasonable time without providing any details nor adducing any evidence to support her case. As such, the Judge was not satisfied that she has provided any good or valid reason for her delay.

14.  The Judge then turned to consider the more important issue of merit.  The applicant had failed to provide any ground of her intended appeal in her summons or affirmation.  In the absence of any error in the decision being clearly and properly identified by the Applicant, the Judge did not see any prospect of success in her intended appeal and therefore, refused to grant an extension of time to appeal the Decision out of time.

The renewed application

15.  On 24 January 2020, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the Leave Decision out of time.  Under Order 59 rule 2B(3) of the Rules of the High Court (Cap. 4A), the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the refusal of leave by the judge, which expired on 31 December 2019.  The applicant was late for 3 weeks in taking out the present summons. Under Order 59 rule 2B(6) of the Rules of the High Court (Cap. 4A), this Court may extend the time for making the application for leave to appeal. 

Legal principles

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, 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.

17.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has merit in the intended appeal: see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

18.  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: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  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.

(2)  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.

(3)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

19.  The applicant was late for 3 weeks in taking out the present summons and the delay cannot be regarded as insignificant.  She claimed in her supporting affirmation that she did not receive any letters or phone calls and apologized for her delay.   Upon checking the court file, the Leave Decision and the order was duly sent to the applicant’s updated address as confirmed by her at the hearing on 21 November 2019 and the mail was not returned.  In the circumstances, we did not accept the applicant’s explanation as good and satisfactory. 

20.  Further, the applicant was late for 2 months in taking out the summons for an extension of time to appeal against the Decision and we agree with DHCJ Bruno Chan that the applicant had failed to provide any good and valid reason for her delay. 

21.  Thus, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted, see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

22.  We therefore turn to the merit of the intended appeal.

23.  The applicant did not provide any draft or proposed grounds of appeal in her summons and supporting affirmation to challenge the Decision except saying the follows:

“Respected Sir, Madam. Please granted my appeal. Because I have a little daughter. She is so small. She was born in Hong Kong. I was also include her birth certificate. I hope my result will be considered with you. Please allowing to me stay in Hong Kong. Thanks for your kindness.”

24.  As the applicant failed to put forward any grounds of appeal against the Decision, with the legal principles stated in [18] of this judgment, her intended appeal is bound to fail.

25.  Further, the applicant’s case was rejected by the Board as she failed to establish that she and her daughter would face any real risk of harm from her parents or the villagers of her home town upon their return to Indonesia.  In our view, the Board’s findings and conclusions were fairly made and we see no proper basis for the court’s intervention.

26.  We have also carefully reviewed the Decision and are satisfied that the Judge had examined the Board’s decision carefully and that the applicant’s intended application for judicial review was rightly refused. 

27.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 24 January 2020 is dismissed accordingly.

28.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] [2019] HKCFI 436

[2] [2019] HKCFI 2907

[3] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] 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.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[6] 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.