RE SUNDARIATI YERI

CAMP 244/2021

[2022] HKCA 735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 244 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1024 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 26 November 2020, DHCJ Bruno Chan (“the Judge”)  refused to grant leave to the applicant for judicial review concerning her non-refoulement claim (“the JR Decision”)  and dismissed her leave application. Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 11 January 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 29 June 2021. 

3.  On 8 July 2021, the applicant filed her summons in CAMP 244/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 8 July 2021, the applicant should lodge her written submissions on or before 22 July 2021.  However, she failed to do so. The Registrar further directed that in the event that the applicant fails to lodge her written submissions, she will be deemed to have abandoned her right to rely on written submissions and her application will be considered on the available documents and materials.

5.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without an oral hearing.

Background

6.  The applicant is an Indonesian national.  She last arrived in Hong Kong on 2 August 2008 with permission to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 1 February 2009.  She did not depart and instead overstayed.  She was arrested by the Immigration Department on 30 August 2010.  She raised her non-refoulement claim on 11 November 2010 alleging that if refouled, she would be harmed or killed by her husband and/or his creditors for failing to assist him in repaying his loan.  The factual background of this case was succinctly summarised by the Judge at [2] – [4] of the JR Decision ([2021] HKCFI 2579).

7.  By the Notice of Decision dated 8 December 2016, the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 7 March 2018 and by its decision dated 4 April 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [42] to [50], the Board found that the applicant was not a truthful witness as her evidence was confused, evasive, incoherent and inconsistent.  It was not satisfied that she gave truthful evidence about the alleged threats from her husband or his creditors.  On her own case, the creditors have not taken any action against her husband and their sons, now in their 20’s.  More importantly, she and her husband have not been in a spousal relationship since 2004, and he had married another woman in 2008.  Even on her own case, she had not seen him since 2004 and had not talked with him on the telephone since 2014.  The Board found that with that long lapse of time, neither the husband nor his creditors would have any adverse interest in her any more upon her return to Indonesia.  Further, the applicant last came to Hong Kong in 2008, but she did not lodge her non-refoulement claim until her arrest and a removal order was issued against her some 18 months later in 2010, which raised considerable concerns whether she is a genuine asylum-seeker.  For the aforesaid reasons, her non-refoulement claim was rejected by the Board on all applicable grounds.

Application for leave to start judicial review

9.  On 5 June 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions but no ground for seeking relief was stated in her Form or supporting affirmation.

The JR Decision

10.  The applicant did not request an oral hearing and the application was disposed of on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused to leave to apply for judicial review for reasons set out in [10] - [14] of the JR Decision:

“10.  On 5 June 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 did not put forward any proper grounds for her intended challenge, nor did she request any oral hearing for her application.  As such 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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 40 – 51 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

13.  Furthermore, the fact is 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, 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.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 11 January 2021 for an extension of time to appeal.  That was dismissed by the Judge on 29 June 2021.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3) the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).  As for (1), the applicant was late by 1 month between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was not insignificant.

13.  As for (2), the reasons for the delay, the applicant alleged that she did not get “letter” (presumably the JR Decision)  from the High Court.  This had not been alleged when she applied to the Judge for extension.  In any event, the court record showed that the JR Decision was sent on the same day to her last reported address which is the same as that stated in her summons and it was not returned through the post.  We are not satisfied that the applicant has provided any good reason for her delay.

14.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision when she applied to the Judge for extension.

15.  In her summons and supporting affirmation filed with this Court, she again failed to provide any grounds for her intended appeal.

16.  It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility as her evidence was evasive, inconsistent and self-contradictory and her case was rejected in its entirety.  Her delay in lodging her non-refoulement claim also suggested that she had recently manufactured a claim to prolong her stay in Hong Kong.  It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  We do not see any in this case.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

17.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 8 July 2021.