RE DARSAH SUBARKAH DARTA AMEN

CAMP 134/2022, [2023] HKCA 538

On Appeal From [2022] HKCFI 352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 134 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 230 OF 2019)

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J U D G M E N T

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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 Lung (“the Judge”) dated 28 January 2022[1] which dismissed her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation to support her application. She has also put in a written submission to support her application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application and the applicant’s written submission, 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 Claims Appeal 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 aged 44. She last entered Hong Kong in December 2014 and was given permission to remain to work as a foreign domestic helper. On 23 June 2015, she was convicted for theft and sentenced to seven weeks’ imprisonment. After her discharge from prison, she raised a non-refoulement claim on 29 July 2015. Her claim was based on fear of being harmed or killed by loan sharks due to her failure to repay her debts. The details of the applicant’s claim were set out in the decision of the Director at [7]. We will not repeat them.

6.  By a decision dated 30 October 2017, 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 decisions to the Board. The Board heard the appeal on 11 September 2018 and by its decision dated 21 January 2019, the Board dismissed the appeal. The Board found that: (1) the applicant’s problems with the loan sharks were private disputes with which the government was not involved; (2) the injuries suffered by the applicant were minor; (3) there was no basis for the applicant’s belief that the police would not take action if she sought help from them; (4) the loan sharks did not disturb her when the applicant returned home in 2014; and (5) the applicant was free to move within and out of her country. The Board held that the applicant did not meet the requirements of the applicable grounds, and concluded that she failed to establish her entitlement to non-refoulement protection.

8.  On 24 January 2019, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision. She did not provide any grounds for relief, other than saying in her supporting affirmation that she had problems due to her huge indebtedness and her life would be in danger if she returned to her country.

9.  The Judge dealt with the application on paper. By a Form CALL-1 dated 28 January 2022, the Judge refused the application. He gave his reasons in [12] to [17] as follows:

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

13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous scrutiny. Before me, the applicant said that she had had a fair hearing before the Board and she had nothing to say.

14. 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.”

15. There is no valid reason from the applicant to challenge the Board’s Decision.

16. 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.

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

10.  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.

11.  By a summons filed on 22 February 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 25 March 2022[6], he refused the application.

12.  On 29 April 2022, 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.

13.  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.

14.  The applicant was 11 days late when she made the application for extension of time. Both in the application for extension of time made to the Judge and in the present application, the applicant stated that she did not receive the court’s judgment timely, but did not elaborate on the detailed circumstances. In our view, the applicant has not satisfactorily explained her delay. Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.

15.  In assessing 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]. Relevantly, 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 Board afresh as if it is a fresh application for judicial review.

16.  In the present case, other than stating in the supporting affirmation that the extension of time is very important to her, the applicant did not provide any ground to support the application or the intended appeal.

17.  In the written submission, the applicant stated that she came to Hong Kong because her life was threatened and she was worried about her enemies; and people who supported her were poor and could not face her enemies, who were powerful and powered by the state police. She also stated that although she had told the Director and the Board everything, they dismissed her claim and appeal. She further complained that the Board did not give her a lawyer or sufficient time, the interpreter was not good, and the Court was wrong to refuse her application.

18.  We would firstly point out that there is obviously an error in the Judge’s reasons at [13]. There was no oral hearing of the applicant’s application for leave to apply for judicial review, and it was incorrect to state that the applicant appeared before the Judge and said she had a fair hearing before the Board. Notwithstanding this, for the reasons set out below, we are of the view that this renewed application has no merits:

(1)  What was stated in the written submission were new assertions that were not raised in the application before the Judge. It is well established that it is not permissible for a litigant to raise new, and especially fact-sensitive, grounds on appeal.

(2)  In any event, what was stated in the written submission were broad and general assertions unsupported by particulars. Her assertion that her enemies were related to the police was at odds with her case before the Director and the Board. Before the Board, she agreed that her problems were private disputes with no government involvement (see [17(a)] of the Board’s decision). It also does not appear that she had raised with the Board that there were problems with the interpreter.

(3)  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success.

19.  As the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 29 April 2022.