RE RIKA RAHIM MATUL HASANAH

CAMP 462/2022

[2023] HKCA 20

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 462 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 450 OF 2022)

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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 K W Lung (“Judge”) dated 1 August 2022[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 11 May 2022.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 31 August 2021 rejecting the applicant’s non-refoulement claim.

2.  On 27 October 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is an Indonesian national, born in 1985.  She entered Hong Kong as a domestic helper on 8 August 2010, but when her contract was prematurely terminated on 8 October 2010, she failed to leave, and had overstayed since 23 October 2010.  She was arrested by the police on 11 April 2013, and subsequently convicted of breach of condition of stay.  In April and December 2013, the applicant submitted a claim for protection, but had not reported to the Immigration Department on time since February 2015.  She surrendered herself to the Immigration Department in December 2020.  In December 2020 and March 2021, the applicant made a written submission to claim non-refoulement protection.  In May 2021, the applicant was arrested by the police for offences under the Immigration Ordinance.  She was later convicted of taking employment when a removal order was in force and using/possession of a forged identity card, and sentenced to 17 months’ imprisonment on 30 September 2021.  Meanwhile, on 6 July 2021, she submitted a Non-refoulement Claim Form with legal assistance. 

4.  The applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed or killed by a loan shark who had lent a loan to the applicant’s father which was guaranteed by her.

5.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]  By notice of decision dated 31 August 2021, the Director rejected the applicant’s claim.

6.  The applicant appealed to the Board against the decision of the Director.  The Board held an oral hearing on 28 April 2022, at which the applicant gave evidence with the assistance of an interpreter and answered the Board’s questions.  The Board noted that the applicant had only made bald assertions in relation to the loan provided by the creditor and had been unable to provide any meaningful details of the family discussion relating to the loan and the steps taken on the day of the loan.  The Board noted various inconsistencies and implausibilities in the applicant’s evidence, as well as her delay in the lodging of a claim and the further processing of her claim.  The Board came to the conclusion that the applicant was not a credible witness and that the core elements of her evidence were devoid of credibility.  The Board found that she had never been subjected to any risk or danger in her country and would not be exposed to any risk or danger upon her refinement.  The Board also found that it would be safe for the applicant in any event to settle in Jakarta, away from the locality of the alleged loan shark.  In the result, the Board dismissed the appeal in its written decision issued on 11 May 2022.

The Judge’s decisions in the court below

7.  On 9 June 2022, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision, but she did not specify any ground for judicial review in the Form 86.  In her affirmation, she merely stated she was not satisfied with the Board’s decision because it was “away from facts and reality” and lacked “transparency”.

8.  Based on consideration of the documents alone, on 1 August 2022 the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out at [17] – [22] of the Form CALL-1 as follows:

“ 17. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

19. 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.’

20. The grounds in paragraph 16 above are her personal opinions and bare assertions without any evidence in support. There are no valid grounds to challenge the Board’s Decision.

21. The Court does not find any fault with the Board in reaching the Board’s Decision.

22. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

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), but only took out a summons on 16 September 2022 to seek an extension of time to appeal against the decision of the Judge.  In her summons, the applicant simply stated she did not receive the court’s decision.

10.  The Judge determined the application for extension of time on paper without an oral hearing.  In his decision dated 27 October 2022, the Judge dismissed the application as he considered that there was no realistic prospect of success in the intended appeal.

The renewed application before this Court

11.  By summons filed on 7 November 2022, the applicant seeks 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 summons, she explained that she failed to appeal in time as she did not get the letter from the court.  She did not, however, set out any proposed grounds of appeal either in her summons or in the supporting affirmation.

12.  In her written submissions, she asserts that she has “life threat” in Indonesia, that she is very weak compared with her enemy, that her enemy paid money to the police and other government departments in Indonesia, and that the Director and the Board made many mistakes.

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 (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  However, since the month of August is not counted for present purposes (see section 31 of the High Court Ordinance (Cap 4)), the applicant was only late by 2 days when she filed her summons for extension of time in the court below on 16 September 2022.  In the circumstances, we shall concentrate on whether there is any merit in the intended appeal.

15.  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.

16.  In the present case, the Board rejected the applicant’s non-refoulement claim based on its adverse views of her credibility, concluding that her core claims were not credible and that she would not be exposed to any real risk of harm if she returned.  The Board further found that internal relocation to Jakarta would be a viable and safe option.  These findings are within the province of the Board, and the court will not interfere with such assessments unless they are vitiated on public law grounds.  The applicant had failed to set out any grounds for judicial review; nor can we see any potential grounds from the materials before us. 

17.  The applicant has also failed to show how the Judge has erred in refusing leave for judicial review.  Having considered the materials before us, we share the Judge’s view that there is no reasonably arguable ground for judicial review.  The Judge was right to refuse leave.

18.  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.

[1]  [2022] HKCFI 2156.

[2]  [2022] HKCFI 3100.

[3]  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).

[4]  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.

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

[6]  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).