RE MILAH

CAMP 245/2020

[2022] HKCA 375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 245 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1511 OF 2018)

_____________________

______________________

___________________

J U D G M E N T

___________________

Hon Yuen JA (giving the Judgment of the Court):

1.  On 8 July 2020, DHCJ Bruno Chan (“the Judge”) refused to give the applicant leave to apply for judicial review proceedings concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 22 July 2020.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 3 September 2020 for extension of time to appeal (which was late by 6 weeks).  That summons was dismissed by the Judge on 8 December 2020. 

3.  On 17 December 2020, the applicant filed her summons in CAMP 245/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  In compliance with the directions made by the Registrar of Civil Appeals on 19 January 2021, the applicant filed her written submissions on 27 January 2021.

Background

5.  The brief background according to the applicant is as follows.  The Applicant is a national of Indonesia.  After leaving school, she first worked as a farmer and later as a domestic helper in Bali where she met her husband in 2012.  Soon after their marriage, the applicant found out her husband was lazy, indulged in drinking alcohol and was abusive to her.  One day in January 2014, when the applicant was eight months pregnant, her husband got drunk and pushed her onto the floor which caused her to suffer a miscarriage.  After the incident, the applicant came to Hong Kong on 21 August 2015 to work as a foreign domestic helper.  When she discovered that her husband spent the money she remitted home on his new girlfriend in Indonesia, she asked for a divorce.  Her husband demanded money from her for the divorce proceedings, and when she refused, he threatened to kill her when she returns to Indonesia.    

6.  When the applicant’s contract of employment was prematurely terminated on 3 July 2016, she did not depart and instead overstayed until 20 July 2016 when she surrendered to the Immigration Department.  She raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband. 

7.  By a Notice of Decision dated 5 January 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 18 January 2018 and by its decision dated 20 July 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [74] to [86], the Board accepted the applicant’s account of events that she was abused by her husband and that her husband threatened to kill her when she refused to give him money for the divorce proceedings.  However, the Board did not accept that she was unable to report her husband to the police for the reason that she did not have access to a telephone, and that undermined her claim that she had a genuine fear of serious harm or death.  Further, the fact that her husband sent her to hospital after beating her indicated that he did not have an intention to kill her, and therefore the Board did not find that the husband had an intention to harm the applicant upon her return to Indonesia. Further, as set out at [87] – [95], relevant Country of origin information (“COI”) suggested there are government and non-government organisations which may assist women who are victims of domestic violence in Indonesia, and in any event, internal relocation is a viable option. For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.

Application for leave to start judicial review

9.  On 31 July 2018, the applicant filed a Form No. 86 together with her supporting affirmation to apply for leave to judicially review the Board’s decision in which she advanced the following grounds for relief as duly summarized at [13] of the JR Decision:

(1)     The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.

(2)     The Adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(3)     The Board’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense or is the result of procedural errors or unfairness

(4)     The Board failed to meet the greater care and duty owed to a self-represented claimant.

(5)     The hearing bundle was given to the applicant only six days before her appeal hearing with the majority of the documents in English, thereby giving insufficient time for her to prepare for the hearing or to find an interpreter to assist her in her appeal before the Board.

(6)     The Board had significantly relied on source of news not officially recognized or which was hearsay or outdated resulting in the Board making groundless speculations that it would be safe for her to return to her country of origin.

The JR Decision

10.  The application was heard on 5 December 2019 and the applicant was assisted by an interpreter at the hearing. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [14] - [19] of the JR Decision:

“14. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fettered its discretion or act in procedurally unfair manner or that its decision was unreasonable or irrational in the public law sense, or which COI were unofficially recognized or hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.     As has been repeatedly emphasized by the Court of Appeal, the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant,as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.     The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

17.     Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation,whilst her NCF was completed on her own instructions with legal assistance, and that at heroral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

18.     The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.     In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  She filed a summons in the Court of First Instance on 3 September 2020 for extension of time to appeal.  That was dismissed by the Judge on 8 December 2020.  Hence, the summons to this court. 

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).  As for (1), the applicant was late by 6 weeks between the JR Decision and the summons filed in the Court of First Instance.  Her delay was substantial.

13.  As for (2), the reasons for the delay, the applicant alleged at the hearing before the Judge that she did not know how to prepare the necessary court documents and the relevant procedures, and therefore she had to seek assistance from her friends, which caused the delay.  We agree with the Judge that ignorance of the law is not a good reason for delay. 

14.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant’s grounds of review were duly considered by the Judge.  In her application for extension of time before the Judge, she did not raise any proper ground of appeal against the JR Decision save for repeating her claim that she did not want to go back to Indonesia as she might be killed by her abusive husband.  The Judge found no realistic prospect of success in the intended appeal and thus refused leave. 

15.  In her summons and supporting affirmation for an extension of time before this Court, she failed to provide any ground to reverse the JR Decision. 

16.  In her written submission, she cited some cases and set out some general legal principles for torture claims and then advanced 5 pages of grounds of appeal against the Board’s decision which are summarized as follows:

(1)     The Adjudicator failed to carry out sufficient research and inquiry into the COI of Indonesia and her case was dismissed upon unfair procedure.

(2)     The Adjudicator failed to take into account and put proper weight on the relevant COI, cherry-picked COI and relied on outdated COI.  Therefore, the decision was Wednesbury unreasonable.

(3)     The Adjudicator failed to evaluate and make a finding of fact as to whether a consistent pattern of gross, flagrant or mass violations of human rights exist in Indonesia.  Therefore, the decision was unreasonable.

(4)     The Adjudicator failed to analyse and assess whether state protection was available in Indonesia and misdirected himself on the meaning of extended state protection.

(5)     The Adjudicator put weight on irrelevant, incorrect and inaccurate considerations, and failed to put weight on facts and draw inferences that were favourable to the applicant’s case.

(6)     The Adjudicator failed to call for psychological and psychiatric reports of the applicant.

(7)     The Adjudicator applied the incorrect standard of proof.

(8)     Lack of legal assistance and representation.

17.  The Court of Appeal has repeatedly emphasised that the court is not a further avenue for appeal against the Board’s decision and the primary decision maker is the Board and the Court would only intervene unless there are valid public law grounds: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].   The Board rejected the applicant’s case for the reason that even based on her own evidence, the husband did not really intend to kill her, and the relevant COI suggests there is reasonable state protection for women who are victims of domestic violence, and as such, there is no real risk of harm upon her return to Indonesia. It was perfectly open to the Board to reach its findings and conclusions and the judge was right to hold that there was no error or procedural unfairness or irregularity in the Board’s decision.

18.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.    

19.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 17 December 2020.