RE MAYA SETIANINGRUM JUMBADI

CACV 352/2018

[2018] HKCA 870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 352 OF 2018

(ON APPEAL FROM HCAL NO. 714 of 2017)

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JUDGMENT

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Hon L Chan J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock given on 27 July 2018 refusing to extend time for applying for leave to bring judicial review proceedings. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 27 February 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 21 August 2015 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 19 November 2009 to work as a foreign domestic helper.  She was permitted to remain until 19 November 2011 or two weeks after termination of contract, whichever was earlier.  On 9 January 2010 her employment contract was prematurely terminated.  She applied for two extensions of stay and has been overstaying since 17 March 2010.  On 22 February 2011, she was arrested by the police.  She was convicted of an immigration offence and sentenced to a term of imprisonment but it was suspended.  After her arrest, she lodged a torture claim.

3.  The Director of Immigration (“the Director”) rejected the applicant’s torture claim on 8 February 2013.  She did not appeal against that decision but failed to report to the Immigration Department as required.  She was arrested by an Immigration officer on 16 July 2014 for working illegally.  She was convicted of the offence and sentenced to a term of 15 months imprisonment.  She then lodged a non-refoulement claim on 4 September 2014.

4.  The applicant’s claim was based on threats from her husband and a moneylender unknown to her.  The details of her claim have been summarised by the judge at [11] to [14] of the CALL-1 Form.

5.  In short, the applicant married in 1997 and had a daughter in 1998.  Her marriage had turned sour in 1998 as her husband had become a drunkard and abused her with violence.  He hit her on numerous occasions.  The most serious occasions were a punch that caused her a cut lip and another that caused her a bloodshot swollen eye.  She did not tell her parents or the police about the incidents.  She came to work in Hong Kong in August 2000 for the first time to avoid him and earn money to support the family.  That was the last time she saw him.  She asked him for a divorce on the phone in mid-2001, but he refused and threatened to kill her if she should take their daughter away.  She learnt in 2002 that her husband had remarried and found out in 2004 that he had remarried her sister.  She built her house next to her parents’ in 2007, but her husband, her daughter, her sister and their children were living in it and her parents refused to expel them.  She phoned a neighbour in Indonesia in 2012 and was told by her sister-in-law that her husband had forged her signature and borrowed the equivalent of about HK$36,000 from a sadistic loan shark in her name and not repaid him.  She was worried that if she should return to Indonesia, the loan shark would kill her for the unpaid debt.

6.  The Director rejected her claim based on BOR 3 risk^[1] and persecution risk^[2] on 21 August 2015.  The Director did not review the claim based on torture risk^[3] in this decision. 

7.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 28 June 2016, the Board dismissed her appeal on 27 February 2017.  The Board’s decision covered torture risk, BOR3 risk and persecution risk.  It appears that the Board overlooked the fact that the Director had declined to deal with the torture claim as it had already been considered and rejected in his earlier decision.  The Board held [between 17(j) and (k)] that state protection was reasonably available for the applicant and at [19] that internal relocation would be viable.

The deputy judge’s decision

8.  The applicant filed a form 86 on 4 October 2017 which was about 7 months after the Board’s decision, and was thus well outside the 3 month period within which judicial review proceedings should be brought.  The form 86 contained no ground for seeking relief.

9.  The applicant also filed an affirmation in support of the leave application on 4 October 2017 and advanced therein various grounds for judicial review.  They are summarised below:

(1)   The Board failed to allow the applicant an opportunity to clarify the discrepancies in the applicant’s account;

(2)   The Board and the Director failed to conduct sufficient enquiry into Country of Origin Information (COI);

(3)   The Board failed to consider the psychological harm to the applicant;

(4)   The Board and the Director failed to conduct a critical analysis of the COI before concluding that state protection is available; and

(5)   The Director took into account irrelevant consideration in concluding that her claim was a monetary and personal matter against her husband and the money lender.

10.  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 to extend time for her to apply for leave for judicial review.  The judge gave reasons in at [6] to [9] of the CALL-1 Form for refusing to extend time for the application and went on to explain in [17] to [22] that leave to apply for judicial review would in any event have been refused on the merits:

“6. The applicant’s notice of application is dated 4 October 2017 therefore, she has failed to file her Form 86 in a timely manner within three months of the date of the adjudicator’s decision according to Order 53 Rule 4. An application should have been made within three months of the TCAB’s determination which was 27 February 2017. This application is four months and one week late. There are no reasons given in the applicant’s Form 86 as required and in the applicant’s supporting affirmation she does not give an explanation but only states that she is late to file this application because she did not receive the TCAB decision by post.

7. During the oral hearing she confirms that the reason she did not receive the TCAB decision by post was because she moved home, changed her address and did not inform the TCAB. She admitted it was her mistake that, despite knowing of their pending decision she did not keep the TCAB informed of her home address. It was an Immigration officer who informed her that her case had concluded, meaning her appeal had been decided. When she learned of this, she went to the TCAB office in person and obtained a copy of the decision. It is entirely her responsibility to update the TCAB office and Immigration Department of any change of address therefore, she has no reasonable excuse for her delay.

8. I have considered the legal principles for granting an extension of time for judicial review. The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

9. The delay is not insignificant and there is no good reason for extending time. This is because her explanation for the delay is weak and the merits of the substantive application after a perusal of the papers are also weak. Moreover, the application does not raise any questions of general public importance. The extension of time sought is an abuse of process and ought to be refused. Delay alone is enough to dispose of this application. However, if I am wrong, I proceed to consider the merits.

…

17. I have to consider with rigorous examination and anxious scrutiny the grounds of this application. I find the Director’s and adjudicator’s decision is to be without fault. The applicant’s grounds and complaints are not made out. I find no substance in the grounds of this application; they are not substantiated.

18. The first ground is a failure of the TCAB to properly identify the applicant’s discrepancies and allow her an opportunity to explain and clarify them. There is no merit in this ground because the adjudicator did not dismiss the claim on the basis that the applicant is not credible although [he] does go on at the end of [his] decision to discuss matters of credibility but says they are discussed independently of [his] decision.

19. The second ground and fourth ground against both the decision-makers submit they failed to conduct sufficient enquiry into relevant COI, analyse it objectively and they are accused of cherry picking information. The conclusion that state protection was available was not substantiated. However, in this ground there are no particulars provided to support it. A reading of both decisions show these criticisms are not justified. There is no merit in this ground.

20. The third ground is a failure to consider the applicant’s psychological harm. This was not raised before either the Director or the adjudicator as part of the applicant’s case therefore, there is no merit in this ground.

21. The last ground against the Director I cannot decipher but appears to be a repetition by the applicant that despite the Director’s finding, she will face a real risk if she returns to Indonesia.

22. I do not find any ground that shows there was an error of law by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.  If I was wrong in refusing an extension of time to apply for judicial review, in my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 31 July 2018 the applicant advanced the following grounds of appeal:

(1)   The Board and the Director failed to make sufficient enquiries into COI and had no or no adequate reason and were wrong to conclude that reasonable state protection was available to her if she should return to Indonesia;

(2)   Failure to give reasons for the assessment and/or insufficient basis to support the conclusion of lack of BOR3 risk;

(3)   Insufficient basis to conclude that the applicant would not be at risk of torture/CIDTP upon refoulement.

12.  In her skeleton submissions dated 16 October 2018, the applicant repeated the matters raised in the notice of appeal.

13.  The applicant agreed by a letter of 31 July 2018 that the appeal could be heard by two judges.  We heard the appeal on 21 November 2018.

Discussion

14.  In Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419 at [29-46], this court held that a decision refusing to extend time for an application for leave to commence judicial review is interlocutory in nature.  Hence, section 14AA of the High Court Ordinance is applicable and leave to appeal is required for appealing against such decision.  Such leave should first be applied for in the court below, and if it is refused, the application for leave may be renewed before this court, when it will generally be determined on the papers, without an oral hearing.  In this case, no application for leave to appeal was made to either court.  However, having regard to the fact that the applicant’s appeal was lodged shortly after the decision in Kwok Cheuk Kin, and she was not (as is now the practice) told of the need to apply for leave, we will, exceptionally, treat the present hearing as an application for leave to appeal to this court, without an application having first been made to the court below.  Additionally, we will treat the hearing for leave to appeal as a rolled up one, so that if leave is granted, we will go on to consider the merits of the appeal.

15.  On this basis, we first consider whether or not leave to appeal should be granted.  In the present case, the fundamental difficulty facing the applicant is that it is clear that the appeal has no prospects of success. All of the grounds in the notice of appeal are concerned with the alleged errors committed by the Board and the Director.  They do not identify any error in the judge’s decision not to extend time for the application for leave or the alternative decision on the merits of the application for leave.  There is thus no viable ground of appeal. Thus, quite apart from the fact that we can see no error in the judge’s refusal to extend time for applying for leave to bring judicial review proceedings, leave to appeal should not be granted to bring what would clearly be an appeal with no viable grounds for appeal, and no prospect of success.   

16.  In the premises, we refuse leave to appeal, strike out the Notice of Appeal, and dismiss the appeal accordingly.