RE ANADA IGAH JUITA RA

CAMP 545/2021

[2022] HKCA 502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 545 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2767/2018)

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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 28 July 2021 refusing to grant an extension of time to appeal against the Judge’s decision dated 10 March 2021, in which the Judge refused leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 5 October 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 28 February 2017 (“the Director’s Decision”) which dismissed the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong as a domestic helper on 15 August 2012, but she subsequently overstayed and was arrested by the police on 21 July 2014.  The applicant thereafter lodged a non-refoulement claim on 7 August 2014.

3.  The applicant’s claim was based on a fear of being harmed or killed by her father and his creditor if she was refouled to Indonesia.  The details of the applicant’s claim have been summarised by the Judge at [5] of his decision (“the CALL‑1 Form”)[1].

4.  By a Notice of Decision dated 28 February 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 8 June 2018, at which the applicant was absent, the Board dismissed the appeal on 5 October 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board rejected the applicant’s case, and without the applicant’s oral evidence to the contrary, found that the applicant would not be at risk of harm should she return to Indonesia.

The Judge’s decision

6.  The applicant filed a Form 86 on 5 December 2018 seeking to judicially review the Board’s Decision without setting out any grounds of review.  In her supporting affirmation, she simply stated that the Board’s Decision was unfair and unreasonable, without elaboration.

7.  After summarizing the facts and background of the case and giving due consideration to the Board’s Decision and the Director’s Decision, 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 [21] 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.

13.  Under section 18, Schedule 1A Torture Claims Appeal Board, of the Ordinance, the Board has discretion to consider the evidence that was before an immigration officer:

    18. Evidence considered by Appeal Board in an appeal under section 37ZR

      (1)  In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—

         (a)  the same evidence that was before an immigration officer; and

         (b)  if subsection (2) applies, evidence that was not before an immigration officer.

14.   In AM v Director of Immigration & Another (unreported, HCAL 102/2012, McWalters J., 20 November 2013), the court held that a hearing before the Board is, in fact, a rehearing of the applicant’s case:

‘30. A rehearing can take different forms. It can take place just on the papers or it can involve the calling of witnesses. Given the fact that it is clearly anticipated that the Adjudicator is expected to resolve issues of credibility and for this purpose should conduct an oral hearing, there will be occasions when the adjudication process will require the calling of witnesses and the taking of evidence. But, this will not always be the case. The process can best be described as a rehearing of the claim at the end of which the Adjudicator makes his own determination in respect of it. … ’

15.   The Board has to rely upon section 18 of Schedule 1A of the Ordinance for receiving evidence at the hearing.

16.   In this case, although the Board has not expressed clearly that it had relied upon the evidence before the immigration officer. However, it had stated at the end of its Decision that the NOD [Notice of Decision] of 28 February 2017 was confirmed. This can be taken that the Board had considered the Director’s Decision and, having considered the evidence therein stated, agreed with the Director’s findings of the facts.

17.   In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. … 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.’

18.   The applicant’s ground in support of her application is her opinion without any evidence or specifics. She has not even explained why she was absent on the hearing date before the Board.

19.   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.

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

CONCLUSION

21.   I refuse her application for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.”

The present application for extension of time to appeal

8.  The applicant’s address as stated in her Form 86 was at King’s Road, North Point.  However, she had also stated in her affirmation in support of the Form 86 that her address was at Castle Peak Bay Immigration Centre, and she had also provided a reference number of her case.  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 Castle Peak Bay Immigration Centre on 10 March 2021.  Contrary to the Judge’s observation at [5] of his decision dated 28 July 2021, it appears that this letter (which was marked “received” by the Immigration Department on 12 March 2021) was returned to the court and marked “no such person”.

9.  On 22 March 2021, the Immigration Department notified the court that the applicant’s address was at To Kwa Wan, Kowloon (“the To Kwa Wan Address”).  The CALL-1 Form and the sealed order of the Judge were accordingly sent to the applicant by a letter to the To Kwa Wan Address on 9 April 2021, which was not returned undelivered.

10.  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 10 March 2021.

11.  The applicant took out a summons in the Court of First Instance on 18 May 2021 seeking extension of time to appeal, in which her address was again stated to be at the Castle Peak Bay Immigration Centre.  She stated in her supporting affirmation that she was unaware of the Judge’s decision dated 10 March 2021.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 28 July 2021[6].

13.  By a summons filed on 1 December 2021, the applicant renewed her application for an extension of time to appeal before this court.  In the summons, the applicant stated that she would like to seek leave to appeal against the Judge’s decision dated 28 July 2021, being the Judge’s refusal to grant an extension of time for her to appeal against his decision dated 10 March 2021.  Although the application purported to seek leave to appeal against the decision dated 28 July 2021, we shall treat it as a renewed application for an extension of time against the substantive decision of 10 March 2021, by which leave for judicial review was refused.

14.  In her supporting affirmation filed on the same date, the applicant stated that she did not receive the Judge’s decision in time because she was detained at the Castle Peak Bay Immigration Centre.

15.  The applicant, in breach of the directions of the Registrar of Civil Appeals, failed to lodge any written submissions on or before 15 December 2021.  We have nonetheless proceeded to consider her application.

Discussion

16.  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.

17.  The applicant has claimed that she did not receive the CALL-1 Form by reason of her then detention by the Immigration Department.  However, the letter dated 10 March 2021 was returned by the Department to the court, with a remark that the applicant was not at the detention centre.  By the time the second letter of 9 April 2021 was sent to the To Kwa Wan Address, the deadline for lodging an appeal had already lapsed.

18.  The reason for the return of the letter dated 10 March 2021 is unknown, and the applicant has failed to particularise the dates or period(s) of her detention by the Immigration Department.  In any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with her.  

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

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

21.  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)].

22.  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.

23.  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)]. 

24.  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.

25.  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 1 December 2021 is accordingly dismissed.