RE NUR INAYAH

CAMP 177/2023, [2023] HKCA 1133

On Appeal From [2021] HKCFI 1019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 177 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 491 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  By a summons filed on 2 May 2023, the applicant reapplied to this court for leave to appeal against the order made by Deputy High Court Judge P Li (“the Deputy Judge”) dated 19 April 2021 ([2021] HKCFI 1019) (“the Leave Decision”), whereby the Deputy Judge dismissed her application for leave to apply for judicial review. Later, by a decision dated 9 December 2021, the Deputy Judge refused the applicant’s application for extension of time to appeal against the Leave Decision ([2021] HKCFI 3623) (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 9 January 2019 (“the Board’s Decision”), refusing the appeal against the decision of the Director of Immigration (“the Director”) dated 3 October 2018 rejecting her claim for non‑refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Indonesia. She last arrived in Hong Kong on 4 October 2017 and was permitted to remain for employment as a Foreign Domestic Helper until 20 August 2019 or two weeks after termination of contract, whichever is earlier. On 3 May 2018, she was intercepted by Immigration Officers for suspected taking up unapproved employment, and was later convicted on 8 June 2018 for offences of making false representations to Immigration Officers. By written representations in July and August 2018, the applicant raised a non‑refoulement claim on the basis that if she was returned to Indonesia, she would be harmed or killed by the loan shark Sundari because she had refused to marry him for the compensation of her parents’ outstanding debt. She was also afraid that she would be forced to marry him by her parents upon her return to Indonesia. Factual details of the applicant’s claim were summarised by the Deputy Judge at [3] ‑ [7] of the Leave Decision.

5.  By a Notice of Decision dated 3 October 2018, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  Subsequently, the applicant appealed against the Director’s Decision to the Board. The Board heard the appeal on 17 December 2018. After considering the evidence, the Board found that the material assertions made by the applicant were implausible and / or lacked credibility. The Board also did not accept that there was any physical or mental suffering to the requisite severity and there was no evidence of ill-treatment within the definition of section 37U of the Immigration Ordinance (Cap 115). The Board also found that there was no involvement of the state or any public official and it was her own mere speculation that the police would not help her. The Board further found that state protection and internal relocation would be available to the applicant. Accordingly, the Board held that the applicant had failed to establish her non-refoulement claim on all applicable grounds and dismissed her appeal.

The Leave Decision

7.  On 20 February 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision. An oral hearing before the Deputy Judge was held on 26 January 2021, but the applicant failed to attend the same. Given the applicant’s absence, the Deputy Judge considered her application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [17] ‑ [26] of the Leave Decision:

“Judicial Review

17. The applicant applied for leave for judicial review of the decisions of the TCAB on 20/2/2019. The grounds set out in the Form 86 are inconsistent with the factual basis of the case. Apart from using ‘He’ to represent herself, she asserted the following (sic):

(a) The applicant feared that he would be sent back to his country where he faces risk to his life.

(b) Even if the adjudicator decides to not have oral hearing, they should at least invite him to submit written submissions and evidence.

(c) The applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the Director of Immigration.

(d) The TCAB has significantly relied on the source of news which is not officially recognised or it is simply hearsay…The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return to my country of origin.

18. In the affirmation in support, she basically repeated the above grounds. However, she no longer alleged that she was not given an oral hearing. In addition, she asserted that she had insufficient time to prepare as the appeal bundle was in English. It was only served upon her 6 days before the hearing including a weekend. She did not understand the procedures in the hearing. She answered questions honestly but was found not credible. The TCAB was unfair.

19. This court fixed a hearing on 26/1/2021 upon her request. She did not turn up. The notice of hearing was sent to her updated address. There was no return of mail. This court decided to consider her leave application on paper.

20. The applicant alleged that she was not given an oral hearing in the Form 86. This is obviously untrue. The loan and the forced marriage were surprisingly not mentioned in those grounds. I have the impression that she adopted the grounds of another case perfunctorily. She did not even care to change the pronoun ‘He’ and check the content.

21. The decision of the Director was sent to the DLS. It is normal practice that it would be translated to her. In any event, she should find language assistance on her own. There is no duty for the Director to provide interpretation at all stages of the application.

22. I accept that most documents in the appeal bundle are in English. In reality the most important documents are the decision of the Director, the NCF and the record of interview before the Director. The latter two were compiled with the assistance of an interpreter. The applicant should be able to understand the contents. In fact, during the hearing before the TCAB, the applicant confirmed the truth and correctness of all the evidence in the appeal bundle.

23. The Form 86 and the affirmation are in English and typewritten. This show that the applicant was able to seek language assistance.

24. The COI considered by the Director and the TCAB were dated 2018. They were from authentic agencies such as the US Department of State, the CIA, the KPK and the Australian Government Refugee Review Tribunal. The news reports were from the New York Times, Transparency International and South China Morning Post etc. They are well established news agencies. In any event, the applicant was unable to point out the questionable aspects of those COI. General criticism could not have taken her case any further.

25. In my view, there is no error of law and procedure. Given the evidence submitted by the applicant, I find the decision of the TCAB reasonable.

Conclusion

26. In my judgment, this case is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.”

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.

10.  On 7 May 2021, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision. By then, she was four days late with her intended appeal. The applicant only alleged that she failed to receive the letter from the court on time.

11.  By the EOT Decision, the Deputy Judge noted that although the applicant’s delay of four days was not significant, she had failed to update her address with the court and thus the consequence of any delay would fall on the applicant. The Deputy Judge also noted that the applicant failed to establish that there was real risk of harm and that the Board was justified in rejecting the factual basis of her claim. Noting that there is no merit in her intended judicial review, the Deputy Judge dismissed her application for extension of time to appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 2 May 2023, the applicant reapplied for leave to appeal against the Leave Decision. In the summons and her supporting affirmation, she merely stated that as the document was lost in the post, she had missed the deadline to appeal against the Leave Decision. She further asserted that there was nothing she could do to prevent the document being lost in the post and that she could only get those documents after searching the court file.

13.  Contrary to the directions made by the Registrar of Civil Appeals on 2 May 2023, the applicant failed to lodge any written submissions.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

16.  In our view, her application has no merit at all and must fail. Although the four days’ delay between the Leave Decision and the EOT Summons was not significant, we agree with the Judge that the duty falls on the applicant to provide the court with the updated address so that any court documents could reach her on time. Any consequence of such delay must be borne by the applicant.

17.  Further, the applicant should have re-applied to the court for extension of time promptly after the EOT Decision. However, we note that the applicant had incurred a further substantial delay of over one year and four months before reapplying to this court. The address provided by her at the time when the EOT Decision was posted was different from that of the present Summons. Again, we stress that it is the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16]. Ignorance of the procedural rules and time limits is also not a valid reason for her substantial delay. Accordingly, the court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

18.  In both the Summons and the supporting affirmation, the applicant failed to identify any error with specific particulars in the Leave Decision. There are therefore no valid grounds of appeal. The intended appeal has no merits at all.

19.  On this basis alone, the intended appeal has no prospect of success. It will be futile to extend time. We dismiss the applicant’s summons filed on 2 May 2023.