RE SUSIANI

CAMP 25/2023, [2024] HKCA 644

On appeal from [2022] HKCFI 3400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 25 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2386 OF 2018)

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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 the decision of Deputy High Court Judge K.W. Lung (“the Judge”)  dated 4 November 2022[1] which dismissed her application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation and also lodged a written submission to support her application. 

3.  Under Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Indonesia, now aged 44. She started working as a foreign domestic helper in Hong Kong in 2002.  She last entered Hong Kong on 3 February 2007 and was permitted to remain for employment as a foreign domestic helper until 3 February 2009 or two weeks after termination of contract, whichever is earlier. Upon the termination of her employment contract, she did not depart and has since 4 February 2009 overstayed in Hong Kong.  On 13 August 2015, she was convicted for overstaying and sentenced to six months’ imprisonment. On 27 November 2015, she made a non-refoulement claim based on fear of being harmed or killed by a moneylender due to her failure to repay her loan.  The details of her claim were set out in [7] of the decision of the Director of Immigration (“Director”).

5.  By a decision dated 20 February 2018, 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. 

6.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board (“Board”).  An oral hearing was held on 20 June 2018, during which the applicant gave evidence and answered questions put by the Board. 

7.  By its decision given on 9 October 2018, the Board dismissed the appeal.  Primarily, the Board accepted the core basis of the applicant’s claim but considered that her claim could not reach the threshold required for non-refoulement protection under the applicable grounds, having regard to the relevant legal principles, the available country of origin information (COI)  pertaining to the level of state protection available to the applicant and the lack of evidence as to any future risk of harm in light of the long lapse of 16 years since the applicant has left Indonesia.  The Board further found that internal relocation is a viable option.  The Board concluded that the applicant is not entitled to non-refoulement protection on any of the applicable grounds.

8.  On 29 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  She did not put forward any grounds for seeking relief.  She simply stated in her affirmation that the Immigration Department has disregarded her dangerous situation.  

9.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 4 November 2022, the Judge refused to give leave for applying for judicial review. He gave his reasons at [13] to [18] as follows:

“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. 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.”

16. The ground in paragraph 12 above is her bare assertions without any evidence in support. There is no valid ground to challenge the Board’s Decision.

17. The Court therefore 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 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.  The 14-day period for the applicant to appeal ended on 18 November 2022

11.  By a summons filed on 24 November 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 3 January 2023[6] refused the application. 

12.  In considering whether to extend the time for appeal, 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. 

13.  The applicant was late by six days when she filed the 24 November 2022 summons, which is not substantial in the context of the 14-day time limit. In the supporting affirmation, the applicant explained that she has contracted COVID-19 and was therefore late in filing her appeal. Considering that the delay was not serious, we are prepared to accept the applicant’s explanation.  What is more important is the merits of the intended appeal to which we now turn.

14.  In considering 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]. 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 primary decision maker afresh as if it is a fresh application for judicial review.

15.  The applicant did not provide any grounds for her intended appeal in the summons or affirmation.  In her written submissions, she stated that the problem in her country is genuine and that the Board and the Director have failed to take into account and/or give proper weight to relevant considerations and materials in their decisions.  The written submission further stated that her “wife and children” have also remained in Hong Kong and are still waiting for the decision of their claims.  We fail to see the relevance of this because it is not the applicant’s case that she was married with children.

16.  We are also of the view that the matters put forward by the applicant do not constitute viable grounds of appeal:

(1)  The Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that the decision is erroneous in law or irrational or there is procedural irregularity or unfairness.  However, in her Form 86 and supporting affirmation, the applicant had not set out any specific grounds to challenge the reasons and findings of the Board.  The Judge, having considered the Board’s decision, found that there was no valid ground to challenge the Board’s decision. In the circumstances, the Judge was entitled to conclude that the intended judicial review has no reasonable prospect of success.   

(2)  The applicant has not elaborated on in what way the Board and the Director have failed take into account relevant matters or materials in their decisions.  Contrary to her assertions, we note that the Board has thoroughly considered and accepted the factual aspects of the applicant’s claim.  The Board’s finding is that the applicant’s claim failed to meet the level of harm that would entitle her to non-refoulement protection under the applicable grounds.

(3)  We have separately considered the Board’s decision.  Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities.  We see no proper basis for disturbing the Board’s conclusion and its findings that internal relocation options are not unreasonable in the circumstances.

17.  For the above reasons, we agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.  

18.  As the applicant’s intended appeal against has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 18 January 2023.