RE KHIAN JUN TJHIA

CAMP 422/2022

[2023] HKCA 394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 422 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 497/2019)

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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 5 July 2022 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 10 January 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 12 October 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Indonesia.  He entered Hong Kong on 12 June 2017 as a visitor, but he overstayed and surrendered to the Immigration Department on 13 July 2017.  On 30 July 2018, he lodged a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by a creditor named Anang and four Muslims. 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 12 October 2018, 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 against the Director’s Decision to the Board.  After an oral hearing on 3 January 2019, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that the applicant’s evidence on his alleged fear of harm was incredible.

The Judge’s decision

6.  The applicant filed a Form 86 on 20 February 2019 seeking to judicially review the Board’s Decision, without setting out any grounds.  In his supporting affirmation, the applicant claimed that the “decision of the Immigration Officer” was biased and that he/she had failed to consider the threat posed to the applicant upon a return to Indonesia.

7.  After summarising 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 [13] to [19] of the CALL‑1 Form:

“13.   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).

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

15.  n 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.’

16.  Those grounds above are not valid reasons to challenge the Board’s Decision. They are his opinions or comments within any evidence in support.

17.  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.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.   refuse to grant leave for the applicant 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 last known address in his Form 86 was at Castle Peak Bay Immigration Centre.  On 29 April 2021, the Immigration Department informed the court that the applicant’s updated address was at Fu Wa Street, Sham Shui Po (“the Fu Wa Street 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 Fu Wa Street Address on 5 July 2022, and were 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 5 July 2022.

10.  The applicant thereafter took out a summons in the Court of First Instance on 8 August 2022 seeking extension of time to appeal, in which his address was stated to be at Shanghai Street, Yaumatei (“the Shanghai Street Address”).  He stated that he did not “get the High Court decision in time”.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 20 September 2022[6].

12.  By a summons filed on 12 October 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, he stated that he did not “get the High Court letter on time”.

13.  In the applicant’s submissions lodged on 26 October 2022, he submitted that his life in his country was “not totally safe” and repeated the dangers he claimed he would face should he be refouled.

Discussion

14.  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.

15.  As noted above, the Judge’s Decision was sent to the last known address of the applicant at the time (which was the Fu Wa Street Address) and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

16.  Even if the applicant had moved to a different address, it was incumbent upon him to notify this court of any change of address in good time and without delay.  He has not only failed to do so, he has also failed to explain in his applications for extension of time (before the Judge and now before this court) the date on which he had moved to the Shanghai Street Address and when he had eventually come to learn of the Judge’s decision.  The applicant must bear the consequence for his failure to take the proper steps to keep the court informed of the address at which he could be reached.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay. 

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

18.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

19.  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.

20.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

21.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 12 October 2022 is accordingly dismissed.