RE DWI DYAH LISTYANINGSIH

CAMP 179/2022, [2023] HKCA 1030

On Appeal From [2021] HKCFI 226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 179 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1133 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 29 January 2021, DHCJ C P Pang (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim and dismissed her leave application (“the JR Decision”). 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 28 July 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ Suffiad on 29 October 2021.

3.  On 1 June 2022, the applicant filed her summons in CAMP 179/2022 (“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 1 June 2022, the applicant should lodge her written submissions in support of the Summons on or before 15 June 2022.  However, she failed to do so.  She only lodged her written submissions on 22 August 2022 and she did not provide any explanation for her delay.  On 23 May 2023, she lodged further written submissions without leave of the court.

5.  On 22 August 2023, the applicant sent a letter to the court requesting “to close my case with number HCAL1133/2018 because I want to go back to my country Indonesia”.  However, she did not file an application for withdrawal of the Summons.

6.  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 a hearing.

Background

7.  The applicant is a national of Indonesia. She last arrived in Hong Kong on 12 March 2015 with permission to work as a foreign domestic helper.  Her employment was prematurely terminated on 29 June 2015 and she overstayed.  She was arrested by police on 6 August 2015. On 18 September 2015, she raised a non-refoulement claim alleging that if refouled, she would be harmed or even killed by her half-brothers who wanted money from her to repay their creditors.  The factual background of this case was succinctly summarised by the Judge at [3] of the JR Decision ([2021] HKCFI 226).

8.  By a Notice of Decision dated 26 January 2017, 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].

9.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  and attended an oral hearing on 13 March 2018.  By its decision dated 25 May 2018, the Board dismissed the appeal.  For the reasons set out at [43] to [48], the Board found that even on the applicant’s own account of events, the dispute was private in nature and there was no evidence suggesting that she had suffered any serious harm or injury that attained the minimum level of severity.  The Board was not convinced that she would be subjected to any harm or ill-treatment upon her return to her home country.  Even if there was such a risk, it would be confined to the local area where she lived and she said at the Board hearing that she had no intention of returning to her home village.  Relevant country of origin information (“COI”)  suggested that there is reasonable state protection.  For the aforesaid reasons, the applicant's non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 19 June 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  She did not advance any ground for seeking relief in her Form or in her supporting affirmation save for repeating the factual allegations of her claim.

The JR Decision

11.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the Board’s decision, the Judge refused leave for judicial review for reasons set out in [10] - [17] of the JR Decision:

“Discussion

10. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

11. When the applicant pursued her appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

12. In the present case, the Board did not take issue with the applicant’s asserted primary facts. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on availability and viability of internal relocation.

13. As mentioned above assessment of evidence, the risk of harm and availability of state protection as well as internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.

14. The complaint raised by the applicant in her affirmation contained nothing to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. There is no reasonably arguable basis to challenge the Board’s findings.

15. Indeed, the applicant’s claim is extremely weak. Even on her own account, the alleged past ill-treatment was of low intensity and frequency. It came nowhere near the level of severity required by law to constitute torture or CIDTP and is indicative of an unreal risk of harm at the most. Moreover, she only filed her claim after she was arrested for her overstaying, which might not be consistent with conduct of someone in genuine fear for one’s life and safety. It could be taken into account as adversely affected the credibility of the claim. She can safely and reasonably relocate to other parts of her country.

16. The decisions of the Director and the Board decision are plainly reasonable.

17.  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, irrational findings, or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.”

Application for extension of time to appeal the JR Decision

12.  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 28 July 2021 for an extension of time to appeal.  That was dismissed by DHCJ Suffiad on 29 October 2021.  Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appeal, 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). 

14.  As for (1), the applicant was late by more than 5 months between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was substantial.

15.  As for (2), the reasons for the delay, the applicant explained in her supporting affirmation that she did not receive the letter from the court and she only knew about it when she searched the court file on 26 July 2021.  The court file showed that the JR Decision was sent to the applicant at her last reported address and it was not returned as undeliverable mail.  The applicant should inform the court of any change of address.  In the circumstances, we do not see any good reason for her substantial delay.

16.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant stated in her summons that the Board failed to make sufficient enquiry before making the determination, however, she did not provide any particulars or elaboration as to what enquiry the Board should have made.  In her supporting affirmation, she reiterated that her life is in danger in her home country.  

17.  In her written submissions, she claimed she cannot return to her home country, and complained that the Judge did not read the Board’s decision as the Board’s decision in fact had many errors.  She further complained that the Judge did not give her time and proper interpretation assistance.

18.  The applicant failed to point to any specific errors in the Board’s decision.  It is clear from that decision that on her own account of events, she did not suffer any serious harm or injury, and it was not believed that she would face any real risk of harm upon her return to her home country. In any event, relevant COI suggested that there is reasonable state protection and internal relocation is a viable option.  These were facts which the Board was entitled to find, and we see no basis for a court to intervene.

19.  Her accusation that the Judge did not read the Board’s decision is baseless, as it is clear from the JR Decision that the Judge had duly set out the major findings and conclusion of the Board’s decision [7].

20.  Further, the applicant’s complaint that the Judge did not give her time and proper interpretation was groundless as she did not request an oral hearing and her application was disposed of on paper.

21.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

22.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  We also note the contents of her letter dated 22 August 2023.  Accordingly, we dismiss the applicant’s summons filed on 1 June 2022.