RE MUAROFAH

CAMP 70/2022

[2022] HKCA 890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 70 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1305/2018)

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J U D G M E N T

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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 K W Lung (“the Judge”)  dated 25 November 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 6 April 2018 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 28 June 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 as a visitor on 31 January 2015 and was permitted to remain as a visitor until 23 February 2015.  She overstayed and she surrendered herself to the Immigration Department on 16 March 2015.  The applicant thereafter lodged a non-refoulement claim on 21 September 2015.

3.  The applicant’s claim was based on a fear of being harmed or killed by her ex-husband.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 28 June 2017, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 20 February 2018, the Board dismissed the appeal on 6 April 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  Although the Board accepted that the applicant might have been subjected to physical harm by her ex-husband, it was of the view that there were internal relocation options, such as Jakarta, which may reduce the risk of future harm.

The Judge’s decision

6.  The applicant filed a Form 86 on 6 July 2018 seeking to judicially review the Board’s Decision without setting out any grounds of review.  In her supporting affirmation, she merely exhibited a copy of the Board’s Decision.  

7.  After summarizing 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 the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL-1 Form:

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

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

14.  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.’

15.  There is no valid reason from the applicant to challenge the Board’s Decision.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

18.  I refuse to grant leave for the applicant 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’s address as stated in her Form 86 was at Man Ying Street, Jordan (“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 25 November 2021.  This letter was 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 25 November 2021.

10.  The applicant took out a summons in the Court of First Instance on 17 December 2021 seeking extension of time to appeal, in which her address was also stated to be the Address.  She stated in her supporting affirmation filed on the same date that the reason for the delay in her lodging of the intended appeal was that she is the mother of a child and “all the work of home I do alone”.   

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 11 January 2022[6].

12.  By a summons filed on 25 February 2022, the applicant renewed her application for an extension of time to appeal before this court.  In her supporting affirmation, the applicant claimed for the first time that she “didn’t receive any decision letter from the court, so I took the decision from the search office”.

13.  The applicant, in breach of the directions of the Registrar of Civil Appeals dated 15 March 2022, failed to lodge written submissions 14 days after the resumption of court business from the general adjournment of court proceedings.  The High Court Registry resumed operation on 12 April 2022, which meant that the applicant should have filed her written submissions on or before 26 April 2022.  

14.  The applicant in fact lodged her submissions late, on 6 May 2022. Given the relatively short delay, we have in this case nonetheless proceeded to consider her written submissions, which merely referred to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

Discussion

15.  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.

16.  In the circumstances of this case, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

17.  We have nonetheless proceeded to consider the merits of the intended appeal.

18.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

19.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

20.  Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)  & (4)]. 

21.  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.

22.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in her written submissions had not been applied in the processing of her non-refoulement claim.

23.  For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 25 February 2022 is accordingly dismissed.