RE MISNGATIN

CAMP 22/2023, [2024] HKCA 961

On Appeal From [2022] HKCFI 2304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 22 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 473 OF 2022)

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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.  On 17 January 2023, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 8 August 2022 ([2022] HKCFI 2304) (“the Leave Decision”) refusing leave to apply for judicial review.  On 18 November 2022, the Deputy Judge refused to grant the applicant an extension of time to appeal against the Leave Decision ([2022] HKCFI 3418).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 11 May 2022 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 27 January 2022 rejecting the applicant’s non‑refoulement claim (“the Director’s Decision”).

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

4.  Subsequently, this court was notified by the Immigration Department on 13 September 2024 that the applicant had been removed voluntarily back to her home country.

BACKGROUND

5.  The applicant is a national of Indonesia.  She last arrived in Hong Kong on 29 March 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract on 29 March 2021.  Her limit of stay as a foreign domestic helper was later extended to 10 April 2022.  On 19 September 2021, she was arrested by the police.  On 14 December 2021, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor, Mujiono, for her default in repaying a loan, and also by her husband, Sukiran, for her criminal offences in Hong Kong involving immorality.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

6.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

7.  The applicant then appealed the Director’s Decision to the Board.  On 11 May 2022, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons for its decision were summarised by the Deputy Judge at [9] ‑ [10] of the Leave Decision:

“9. The Board noted that the applicant’s evidence was inherently inconsistent [38].  In particular, the Board highlighted the followings.  It observed that the applicant was inconsistent about the sum of the loan; that she failed to provide any objective evidence to support the claimed loan; that it was implausible that Mujiono would lend her the said sum given her personal background; that her behavior of not sending some of her salary to her mother was inconsistent with her claim that she shouldered the responsibilities to pay for her parents’ medical expenses; and that her new claim of being a guarantor of her friend’s loan in Hong Kong was inconsistent with her claim of indebtedness.

10. In light of the aforesaid findings, the Board found that her claim lacked credibility.  Even taking her claim to the highest, there was no evidence showing that the loan shark and her husband would inflict any harms on her if she was refouled since they did not do so in the past.  Further, there was no objective evidence on her parents’ medical expenses.  Meanwhile, the claimed terms of the loan were illogical.  As to her claimed fear of harm from her husband, it remained a bare assertion without any evidential support [39].”

8.  On 14 June 2022, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  No ground of review was given in the Form 86. In her supporting affirmation, the applicant stated that she was not satisfied with the Board’s Decision because it swayed from the facts and reality related to her case and there was no transparency in the decision making process.

THE DEPUTY JUDGE’S DECISION

9.  As the applicant did not request an oral hearing, the Deputy Judge dealt with her application on paper.  On 8 August 2022, the Deputy Judge refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [14] ‑ [20] of the Leave Decision:

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

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

16. 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.’

17. The grounds in [her supporting affirmation] are her personal opinions and bare assertions without any evidence in support. There is no valid ground to challenge the Board’s Decision.

18. The Court does not find any fault with the Board in reaching the Board’s Decision.

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

CONCLUSION

20. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application n.”

10.  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.

11.  On 1 November 2022 and 7 November 2022, the applicant applied respectively by two summonses for an extension of time to appeal against the Leave Decision.  By that time, she was over two months late with her intended appeal.

12.  On 18 November 2022, the Deputy Judge dismissed the applicant’s application, holding that she had failed to provide good reason for her delay, and also that she had not been able to show any realistic prospect of success in her intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation taken out on 17 January 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In her summons and supporting affirmation, the applicant only claimed that she did not receive the letter from the court in time, without providing any ground in support of her application.

14.  In her written submissions lodged on 31 January 2023, the applicant asserted that her life is still under threat in her home country and her enemy was very influential, rich and supported by corrupted authorities.  She also contended that there were many errors in the Board’s Decision.

DISCUSSION

15.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

17.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

18.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

19.  At the outset, the applicant’s delay of over two months is substantial and inordinate.  We agree with the Deputy Judge that the applicant had failed to give explanation for her delay.

20.  More importantly, there is also no merit in the applicant’s intended appeal.  Her complaints are general allegations without particulars.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

21.  The applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.

22.  There is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

23.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 17 January 2023 is dismissed.

24.  On 13 September 2024, the court was notified by the Director that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.