RE SITI KASTURI

CAMP 555/2021

[2022] HKCA 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 555 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1994/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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 17 June 2021 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 20 August 2018 (“the Board’s Decision”)  and the decision of the Director of Immigration (“the Director”)  dated and 12 March 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Indonesia.  She last entered Hong Kong in 2012, working as a domestic helper.  On 7 February 2017, she was convicted of the offence of breach of condition of stay.  The applicant thereafter lodged a non-refoulement claim on 20 March 2017.

3.  The applicant’s claim was based on a fear of being harmed by her stepfather should she be refouled.  The details of the applicant’s claim have been summarised by the Judge at [2] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 12 March 2018, 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 20 July 2018, the Board dismissed the appeal on 20 August 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board concluded that there were discrepancies in the applicant’s claims which rendered her evidence unreliable and thus did not accept her evidence.  It also considered that state protection was available and that internal relocation would reduce or negate the risk of the harm (if any)  that she might face.

The Judge’s decision

6.  The applicant filed a Form 86 on 20 September 2018 seeking to judicially review the Decisions without setting out any grounds of review.  In her supporting affirmation, she merely exhibited the Director’s and the Board’s Decisions.  

7.  After summarizing 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 [10] to [14] of the CALL-1 Form:

“10.  On 20 September 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of those decisions but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11.  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.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts 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.

13.  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.

14.  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’s address as stated in her Form 86 was at Shanghai Street, Jordan (“the Jordan 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 Jordan Address on 17 June 2021.  This letter was not returned undelivered.

9.  The applicant took out a summons in the Court of First Instance on 9 August 2021 seeking extension of time to appeal, in which her address was stated to be at Canton Road, Mongkok (“the Mongkok Address”).  In her supporting affirmation filed on the same date, she stated that she did not receive any letter from the court. 

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 17 June 2021.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 8 December 2021[6].

12.  By a summons filed on 10 December 2021, the applicant renewed her application for an extension of time to appeal before this court.  In the summons and her supporting affirmation, the applicant simply repeated her wish for the court to grant an extension of time to appeal, and provided no explanation for her delay.

13.  In the applicant’s written submissions dated 24 December 2021, she merely repeated the dangers she claimed to face if refouled to Indonesia. 

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 decision of the Judge was sent to the last known address of the applicant (which at that time was the Jordan Address)  on 17 June 2021, and there was no return of mail.  The inference to be drawn is that she has duly received that letter from the court, and thus had knowledge of the Judge’s decision within the period she was permitted to lodge the intended appeal.

16.  Further, the applicant has proffered no reason or explanation for the delay in bringing the intended appeal.  In any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with her.  

17.  In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

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

19.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or 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.  The applicant’s written submissions contained nothing more than repetitions of her alleged fears upon her return to Indonesia, which for the purpose of the present application, cannot assist her.  As we have often stated, a judicial review is not a further appeal from the decision of the Board, and it is necessary for public law errors on the Board’s part to be established.  An appeal to this court is not a further application for judicial review.  It is essential for the applicant to put forward grounds of appeal that identify errors on the part of the Judge below.

22.  For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 10 December 2021 is accordingly dismissed.