RE ELOK-PASMAWATI

CAMP 228/2022

[2022] HKCA 1270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 228 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 10 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 1 September 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 10 December 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 30 April 2018 rejecting the applicant’s non-refoulement claim.

2.  On 16 June 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is an Indonesian national. She last arrived in Hong Kong on 20 October 2016 as a foreign domestic helper. She was given permission to stay until 8 August 2017 or two weeks after the termination of her employment contract which occurred in February 2017. On 5 February 2017 the applicant was arrested for breach of condition of stay and her contract was terminated. She was later convicted of offences relating to establishing a business without the approval of the Immigration Department and sentenced to 3 months’ imprisonment. She lodged a non-refoulement claim by written submissions dated between 16 March and 8 May 2017. She had been discharged from prison, and released from administrative detention on recognizance, pending removal from Hong Kong pursuant to a removal order.

4.  The applicant’s claim for non-refoulement protection was based on the fear that, if she returned to Indonesia, she would be harmed or killed by her former boyfriend for failing to give him money. The factual background of her claim was set out at [3] of the Board’s decision dated 10 December 2018.

5.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6] By notice of decision dated 30 April 2018, the Director rejected the applicant’s claim.

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 9 November 2018, during which the applicant gave evidence and answered questions from the Board. In the end the Board accepted the applicant’s evidence about her relationship with her boyfriend, Riyadi, and the domestic violence she had suffered at his hands. But the Board did not accept that the applicant’s fear of Riyadi if she returned was realistic or well-founded. On her own evidence the applicant had limited contact with Riyadi in the previous 18 months and no plan for further contact. There was no evidence on any ongoing threat from Riyadi into the future. The Board considered that there was nothing to tie the applicant to a certain area of Indonesia if she returned, and that she would be able to relocate and live elsewhere in Indonesia. The Board did not accept that Riyadi would be able to locate and harm the applicant upon her return to Indonesia. In conclusion, therefore, the Board rejected the applicant’s appeal and affirmed the Director’s decision.

The Judge’s decisions in the court below

7.  On 3 January 2019, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision However, no ground for judicial review was set out in the Form 86 or the applicant’s affirmation.

8.  Based on consideration of the documents alone, on 1 September 2021 the Judge refused to grant leave to apply for judicial review. The reasons were set out at [11] – [14] of the Form CALL-1 as follows:

“ 11. On 3 January 2019 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 just 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 Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

12. 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.

13. 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 part 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.

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.”

9.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), and only took out a summons on 15 December 2021 to seek an extension of time to appeal against the decision of the Judge. In her supporting affirmation, the applicant simply said she was late because she did not receive the decision from the High Court.

10.  The Judge heard the application for extension of time on 1 June 2022. In his decision dated 16 June 2022, the Judge dismissed the application as there was no good reason for the delay and no prospect of success in the intended appeal.

The renewed application before this Court

11.  On 5 July 2022, the applicant took out a summons seeking an extension of time from this court for her to appeal against the decision of the Judge refusing to grant leave for judicial review. In her accompanying affirmation, the applicant simply stated that she disagreed with the decisions of the Director and of the Board and would like to have her case reviewed.

12.  On 19 July 2022, the applicant lodged written submissions for her application. She stated again that she disagreed with the decisions of the Director and of the Board, and that she did not think her case had been determined fairly. She asked for the procedural unfairness to be taken into account, but did not specify what unfairness there was. She claimed that the Board made adverse findings on her credibility, and that such decisions should be subject to review. She complained of irrationality in the decision without substantiating the allegation. She complained that the Board relied on news which was simply hearsay or out of date, but did not specify what it was.

13.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. 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 intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.  The applicant’s application to the Judge for extension of time to appeal was late by 3 months. The delay was serious and there was no valid explanation for it. The applicant needs to show a real prospect of success in the appeal in order for time to be extended.

16.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

17.  In the present case, contrary to the applicant’s submissions, the Board did not find against her credibility. The Board was prepared to accept her evidence at face value, and had sympathy in relation to her past experiences. The Board concluded, however, that based on that evidence, the applicant could and would avoid having any further engagement with Riyadi upon her return to her country. The Board noted that the applicant had 10 years’ formal education and 20 years’ work experience, including running her own online clothing business, and found that she would have no difficulty relocating safely to another part of Indonesia.

18.  The applicant’s complaints of procedural unfairness, irrationality, and reliance on hearsay or out-of-date materials, consist solely of mentioning the catch-phrases, without giving any particulars, and must as such be rejected. Nor have those grounds been raised in her application below for leave to apply for judicial review.

19.  The applicant has failed to show how the Judge has erred in refusing leave for judicial review. As there are no grounds of appeal advanced that point to any error in the Judge’s decision, the appeal should be dismissed. In any event, having considered the materials before us, we are of the view that the Judge’s observations are justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

20.  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 applicant’s summons is accordingly dismissed.