RE SITI RIYANI

CAMP 111/2023, [2023] HKCA 1290

On appeal from [2022] HKCFI 1219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 111 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 519 OF 2019)

____________________

____________________

________________

JUDGMENT

________________

Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge To (“the Judge”) dated 28 April 2022[1] which dismissed her application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation and also lodged a written submission to support her application.  By a letter dated 28 August 2023 which reached the Court on 4 September 2023, the applicant requested to withdraw her non-refoulement claim and this case and to return to her home country as soon as possible.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”), which rejected her non-refoulement claim.

5.  The applicant is a national of Indonesia, now aged 48.  She had previously worked in Hong Kong as a foreign domestic helper from 2002 to 2004, and from 2007 to 2009. She last entered Hong Kong on 21 September 2009 to work as a foreign domestic helper. After her employment was prematurely terminated and her permission to stay expired on 29 August 2010, she did not depart and overstayed. She was arrested on 6 August 2012 and was subsequently convicted of immigration-related offences and sentenced to 12 months of imprisonment on 9 August 2012. On 14 March 2014, she lodged a non-refoulement claim based on fear of being harmed or killed by her husband who suspected she had an affair with a mutual friend. The details of the claim were set out in [7] of the Director’s decision.  

6.  By a decision dated 8 December 2016, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds. 

7.  The applicant appealed the Director’s decision to the Board.  An oral hearing was held on 23 March 2018, during which the applicant gave evidence and answered questions put by the Board. 

8.  By its decision given on 24 May 2018, the Board dismissed the appeal.  The Board considered that the applicant’s evidence about her relationship with her husband evasive, vague and contradictory. The Board found her evidence on her last contact with her husband was entirely unconvincing, and her claimed fear of her husband was not credible. The Board was satisfied that the applicant does not have any subjective fear that she would face serious harm at the hands of her husband upon her return to Indonesia. The Board further found that internal relocation options were reasonably available that would remove or reduce any risk of harm she might face. The Board accordingly found the applicant failed to establish her entitlement to non-refoulement protection under all the applicable grounds.   

9.  On 22 February 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  She did not put forward any ground for seeking relief.  She did not respond to the court’s letter dated 15 December 2021 inviting the applicant to provide her first language and to file submissions.  

10.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 28 April 2022, the Judge refused to give leave for applying for judicial review. He gave his reasons at [17] to [19] as follows:

“17. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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 court will scrutinize 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^[6].

18.  In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to her home country.  In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Indonesia.” 

“19. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant not credible and that she has failed to prove the factual basis to support of her case. It was on that basis that the Board found that she has failed to prove his (sic) entitlement to non-refoulement protection under any of the four applicable grounds. The court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.”

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The 14-day period for the applicant to appeal ended on 12 May 2022.

12.  By a summons filed on 26 August 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 6 March 2023[7] refused the application. 

13.  Under Order 59 rule 14(3) of the Rules of the High Court, the applicant may within seven days of the Judge’s refusal make a renewed application for extension of time to this Court.  On 21 March 2023, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

14.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

15.  The applicant was late by more than three months when she filed the 26 August 2022 summons, which is a significant delay.  In the supporting affirmation, the applicant explained that the delay was due to the fact that she did not receive any letter from the court informing her that her leave application had been refused. However, as noted by the Judge, the court record shows that the Form CALL-1 and the court order were sent to the address provided by her in the Form 86 and supporting affirmation and have not been returned by the Post Office. There was also no explanation from the applicant for neglecting to inform the court of her change of address, despite specific directions from the court to do so. We do not find the delay to have been satisfactorily explained.        

16.  As to the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.  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.  It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

18.  The applicant did not provide any grounds in the present summons or affirmation. She simply stated that she did not speak English and did not understand the court procedures. In her written submissions, she stated that her case was determined unfairly as she was not provided with proper legal and language assistance.

19.  For the following reasons, we are of the view that the matters put forward by the applicant do not constitute viable grounds of appeal:

(1)  The Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that the decision is erroneous in law or irrational or there is procedural irregularity or unfairness.  However, in her Form 86 and supporting affirmation, the applicant had not set out any ground for seeking relief or made any challenge to the reasons and findings of the Board.  Further, the Judge, having scrutinised the Board’s decision, concluded that there was no proper basis to disturb it.  In the circumstances the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.   

(2)  The applicant has failed to demonstrate how the alleged lack of legal or language assistance has inhibited her ability to substantiate her claim in all stages of the assessment and in the leave application below. We also note from her 3-page written submissions that she was able to articulate her reasons for the present renewed application. Further, this Court has consistently held that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see, for instance, Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].

(3)  We have separately considered the Board’s decision.  Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities.  We see no proper basis for disturbing the Board’s rejection of the applicant’s factual case and his findings that internal relocation options are not unreasonable in the circumstances.

20.  For the above reasons, we agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.           

21.  As the applicant’s intended appeal against has no prospect of success, it would be futile to extend the time to appeal.  In the circumstances and having regard to the applicant’s indication that she no longer wishes to pursue her application, we order that the applicant’s summons filed on 21 March 2023 be dismissed.