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CAMP 58/2023, [2024] HKCA 587
On appeal from [2021] HKCFI 604
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 58 OF 2023
(ON AN INTENDED APPEAL FROM HCAL 1207/2018)
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| RE: |
Riniwati Surongku |
Applicant |
____________________
| Before: |
Hon Chu VP and Barma JA in Court |
| Date of Judgment: |
11 July 2024 |
___________________
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 15 March 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against[1] the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 8 June 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 27 July 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).
Background
2. The applicant is a national of Indonesia. She entered Hong Kong on 26 June 2011 as a foreign domestic helper, but she overstayed after the premature termination of her employment contract and was arrested by the police on 1 December 2011. Thereafter, she raised a non-refoulement claim[2] by way of an undated written signification which was received by the Immigration Department on 5 February 2016.
3. The applicant’s claim was based on a fear of being harmed or killed by her creditor. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL-1 Form”)[3].
4. By a Notice of Decision dated 27 July 2017, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[4], the persecution risk[5], the BOR 2 risk[6] and the BOR 3 risk[7].
5. The applicant appealed to the Board. After a hearing on 26 March 2018, the Board dismissed the applicant’s appeal by its Decision. In dismissing her appeal, the Board found, on the totality of the facts and evidence, that there was no real risk of proscribed harm faced by the applicant should she return to Indonesia.
The Judge’s decision
6. The applicant filed a Form 86 on 27 June 2018 seeking to judicially review the Board’s Decision without setting out any grounds. In her supporting affidavit filed on the same date, she complained that the “Director’s” (taken to mean the Board’s) Decision was unreasonable and that it failed to “consider all the matters raised in [her] claim and/or give adequate reason for [its] decision”.
7. 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 his reasons in refusing leave to apply for judicial review at [12] to [17] of the CALL‑1 Form:
“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. In a nutshell, the Board rejected her evidence on the facts in support of her claim. See paragraph 10 above.
13. 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.’
14. The applicant’s grounds in support of her application are her opinions without any evidence or specifics. The Director and the Board had given reasons in support of their respective Decisions. See §§7 & 9 above.
15. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
17. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
The present application for extension of time to appeal
8. The applicant stated in her Form 86 that her address of service at the time was at No.361 Hennessy Road, Wan Chai (“the 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 Address on 15 March 2021, and were not returned undelivered.
9. 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 15 March 2021.
10. The applicant thereafter took out a summons in the Court of First Instance on 13 December 2022 seeking extension of time to appeal, in which her address was stated to be at Ma Tau Kok Detention Centre (“the Centre”). In her supporting affirmation filed on the same day, she stated that she did not have the means to instruct a “private lawyer”.
11. The applicant’s application to appeal out of time was dismissed by the Judge on 17 January 2023[8].
12. By a summons filed on 9 February 2023, the applicant renewed her application for an extension of time to appeal before this court. In her supporting affirmation, she merely repeated that she did not have “access to any legal advice”.
13. In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge any written submissions with the court. She is therefore deemed to have abandoned her right to rely on the same.
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 Judge’s Decision was sent to the last known address of the applicant at the time (which was the Address) and was not returned undelivered. The inference which should be drawn is that she has received that 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.
16. In any event, it is incumbent upon the applicant to update the court of her correspondence address promptly, in this case her move to the Centre (as well as informing the court of the details regarding her transfer to and detention at the Centre), and she must bear the consequences of her failure to do so. She has also failed to inform the court of how and when she had come to learn of the Judge’s decision.
17. In the circumstances, we consider that the applicant has failed to provide any reasonable explanation for the delay in lodging her intended appeal.
18. Although there was a relatively short delay of around 1 week in the applicant’s renewal of the application before this court, the initial application to the court below was grossly out of some by some 1 year and 9 months. There appears to be no justification for it and the application should be dismissed for this reason alone. However, we shall nonetheless also examine the merits of the intended appeal.
19. 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.
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. 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.
22. We are also unpersuaded by the applicant’s complaint of the lack of access to a “private lawyer” or legal advice. We note that the applicant has had the benefit of legal representation from the Duty Lawyer Service in presenting her case to the Director, including the submission of her non-refoulement claim form and at her screening interview. This court has repeatedly held that 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. It suffices for legal representation to be provided at the initial stage, with subsequent legal representation being provided on a merits basis. 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.
23. 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 9 February 2023 is accordingly dismissed.
(CARLYE CHU)
Vice-President |
(AARIF BARMA)
Justice of Appeal |
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The applicant acting in person
[1] In the Form 86, the applicant (in the section ‘Judgment… in respect of which is sought’) for reasons unknown referred to the decision of “[DHCJ] Bruno Chan dated 27 [June] 2018 RB CL 2996/2011”, which the Judge rightly treated as being the decision of the Board.
[2] The applicant previously raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was initially treated as withdrawn, but was later included and assessed in her non-refoulement claim under the Unified Screening Mechanism.
[3] [2021] HKCFI 604
[4] 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.
[5] 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.
[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.
[7] 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.
[8] [2023] HKCFI 78
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