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CAMP 451/2022, [2023] HKCA 1257
on appeal from [2022] HKCFI 1012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 451 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 77/2019)
________________________
| RE: |
DENIK WINDARTI |
Applicant |
________________________
| Before: |
Hon Chu VP and Barma JA in Court |
| Date of Judgment: |
15 November 2023 |
________________________
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 KW Lung (“the Judge”) dated 20 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 3 January 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 7 March 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 as a foreign domestic helper on 4 April 2014, but she overstayed and surrendered to the Immigration Department on 28 October 2015. Thereafter, she lodged a non-refoulement claim on 17 May 2016.
3. The applicant’s claim was based on a fear of being tortured, ill-treated or persecuted by her step-father. 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 BOR2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board. After a hearing on 30 August 2018, the Board dismissed the applicant’s appeal by its Decision. In dismissing her appeal, the Board found on the facts that the applicant’s stepfather had no intention to harm her, that she has not seen him in over 10 years, nor did she know whether he was still alive. Accordingly, the fear of harm of the applicant was said to be remote, and that in any event, there were viable options of internal relocation in Indonesia (such as Surabaya or Jakarta) which were suitable and available to her.
The Judge’s decision
6. The applicant filed a Form 86 on 9 January 2019 seeking to judicially review the Board’s Decision.
7. In her supporting affirmation, she raised various grounds of review, which in gist amounted to complaints that she was unassisted by interpreters and legal representation during the processing of her claim by the Director and 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 [12] to [20] 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. Before me, the applicant said she was free to express her view and she had nothing further to say.
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. There is no valid reason from the applicant to challenge the Board’s Decision. If she did not have enough time to prepare for the hearing because of the late delivery of the hearing bundle, she could have asked an adjournment of her hearing for her to make her preparation.
16. The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held:
‘13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].’
17. The Ordinance does not provide that there must be screening for BOR2 risk assessment. The first screening for other risks had covered all the facts of the claim. The other grounds are the applicant’s comments or opinions without evidence in support of them.
18. 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.
19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
20. 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 last known address at the time of the Judge’s decision was at Nam Cheong Street, Sham Shui Po, Kowloon (“the SSP Address”).
10. 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 SSP Address on 20 April 2022, and was not returned undelivered.
11. 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 20 April 2022.
12. The applicant thereafter took out a summons in the Court of First Instance on 27 June 2022 seeking extension of time to appeal, in which her address was stated to be the SSP Address. In the summons she stated that she “did not get chance” to appeal against the Judge’s decision. In her supporting affirmation filed on the same date, she stated that she “failed to appeal in time, please extend time”.
13. The applicant’s application to appeal out of time was dismissed by the Judge on 27 July 2022[6].
14. By a summons filed on 31 October 2022, the applicant renewed her application for an extension of time to appeal before this court. In the summons, the applicant stated:
“I did not get my decision but the High [Court] did not give me chance to appeal. I do not agree with the High Court Judgment. Please permit me to appeal”.
15. In her supporting affirmation, the applicant stated:
“Extension to time to appeal as High Court did not extend time. The High Court has two decision I do not agree with them”.
16. The applicant lodged her written submissions on 14 November 2022, wherein she restated the background to her claims and the “problems” she may face should she return to Indonesia.
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 and was not returned undelivered. The inference to be drawn is that she has received the letter from the court, and she has had knowledge of the Judge’s decision within the period she was permitted to lodge the intended appeal.
19. Further, 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 20 April 2022.
20. Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.
21. Moreover, the further delay of over 2 months by the applicant in renewing her extension of time application before this court is not insignificant, and her application is liable to be dismissed on the basis of delay alone. We have nonetheless proceeded to consider the merits of the intended appeal.
22. 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.
23. 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.
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 unfounded and 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. 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.
27. 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 31 October 2022 is accordingly dismissed.
| (Carlye Chu) |
(Aarif Barma) |
| Vice-President |
Justice of Appeal |
The applicant acting in person
[1] [2022] HKCFI 1012
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2022] HKCFI 2131
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