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CAMP 329/2021
[2022] HKCA 287
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 329 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 2651/2018)
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| RE: |
NINIK ETIKA SARI |
Applicant |
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Before: Hon Barma JA and G Lam JA in Court
Date of Judgment: 25 February 2022
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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 KW Lung (“the Judge”) dated 6 May 2021 refusing 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 21 November 2018. On 4 August 2021, the Judge refused to extend time for the applicant to appeal against his decision dated 6 May 2021.
Background
2. The applicant is an Indonesian national. She came to Hong Kong to work as a domestic helper a number of times. On 3 May 2012, she was permitted to stay until 3 May 2014 or two weeks after the termination of her contract. After the early termination of her contract, she overstayed and was arrested by the police. She lodged a non-refoulement claim with the Immigration Department on 3 September 2014.
3. In gist, the applicant’s claim was based on a fear of death or serious harm threatened by a loan shark who threatened to kill her due to her failure to repay the loan made to her mother for the purpose of repairing the family house and for her father’s medical expenses.
4. By a Notice of Decision dated 19 December 2017, the Director decided against the applicant’s claim. This decision covered the torture risk[1], the persecution risk[2], the “BOR 2” risk[3] and the “BOR 3” risk[4].
5. The applicant appealed to the Board. After an oral hearing on 15 August 2018, the Board dismissed the appeal on 21 November 2018. The Board disbelieved the applicant’s case and did not accept that she was at risk as she claimed.
6. The Board’s decision covered all four grounds for non-refoulement protection.
The Judge’s decision on leave to apply for judicial review
7. The applicant filed a Form 86 on 23 November 2018 for leave to apply for judicial review against the Director, with a supporting affirmation, in which she did not advance any explanation as to the grounds of the proposed judicial review.
8. The Judge dealt with the application on paper and directed the amendment of the Form 86 to the effect that the Board was the putative respondent and the Director was the interested party pursuant to O.20, r.8 and O.53, r.3(6), treating it as an application for judicial review of the Board’s decision. The Judge gave the following reasons in his decision dated 6 May 2021 in refusing the application (at [8] to [16] of the CALL-1 Form[5]):
“The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. She appeared before the adjudicator on 15 August 2018.
9. The Board had had a protracted examination and cross-examination of her evidence. It came to its conclusion that the applicant’s story of incurring a loan in Indonesia and that she feared harm at the hands of the loan shark should she return to Indonesia had no credibility and therefore her claims relating to this loan and the loan shark were untrue. [37] It found that the applicant had not established that there were substantial grounds which supported the conclusion that she would face any risk of ill-treatment as claimed if she returned to Indonesia. The Board dismissed her claim on all risks in paragraph 6 above.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant filed Form 86 on 23 November 2018 for leave to apply for judicial review of the Board’s Decision. In the affirmation in support of her application, the applicant simply attached the papers in the hearing bundle as exhibits without specifying any grounds.
DISCUSSION
11. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
12. 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.’
13. Her affirmation in support of her application does not assist her.
14. 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.
15. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
16. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
9. According to the court’s record, a copy of the CALL-1 form and a sealed copy of the Judge’s order were sent to the applicant by post on 6 May 2021.
The application for extension of time to appeal
10. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.
11. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 6 May 2021. She only took out a summons to extend time to appeal against the Judge’s decision dated 6 May 2021 in the Court of First Instance on 23 June 2021. In her supporting affirmation, she stated that she needed a time extension since she did not receive the Judge’s decision in time.
12. The Judge dismissed her application for extension of time to appeal on 4 August 2021.
13. By a summons filed on 9 August 2021, the applicant renewed her application for an extension of time to appeal before this court. In the affirmation, the applicant stated that she would like to extend time to appeal against the Judge’s decision refusing to grant leave for judicial review but did not provide any explanation for the delay or any intended ground of appeal.
14. In the applicant’s written submissions dated 23 August 2021, it is stated that she did not receive the letter containing the Judge’s decision refusing leave for judicial review in time and therefore required an extension of time to appeal. She did not set out any intended ground of appeal.
Discussion
15. Having considered the papers and the applicant’s written submissions, 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. The initial delay of the applicant in the present case was a relatively short one and we accept it is possible that there was a delay in the applicant’s receipt of the Judge’s decision dated 6 May 2021 which led to the delay in taking out an appeal.
17. In terms of the merits of the intended appeal, 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. As rightly observed by the Judge in his decision dated 6 May 2021, 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. That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed by the Judge.
18. In an appeal to this court, it is necessary for the applicant to put forward grounds of appeal which demonstrate some error on the part of the Judge. The applicant has wholly failed to do this.
19. In the circumstances, 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 9 August 2021 is accordingly dismissed.
| (Aarif Barma) |
(Godfrey Lam) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] [2021] HKCFI 1214
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