RE NUR LATIFAH

CAMP 333/2021

[2022] HKCA 1481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 333 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 422 OF 2021)

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J U D G M E N T

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

1.  On 23 April 2021, DHCJ K.W. Lung (“the Judge”)  refused to grant leave to the applicant to apply for judicial review 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.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 12 May 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 17 June 2021. 

3.  On 11 August 2021, the applicant filed a summons in CAMP 333/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 11 August 2021, the applicant should lodge her written submissions on or before 25 August 2021.  She failed to do so.  It was further directed that in the event the applicant failed to lodge her written submissions, she shall be deemed to have abandoned her right to rely on written submissions, and the matter will be referred to the Court of Appeal for determination based on the available materials. 

5.  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.  

Background

6.  The applicant is an Indonesian national.  She came to Hong Kong as a domestic helper on 17 September 2018.  Her contract was terminated prematurely.  She overstayed and was arrested by the Immigration Department on 21 November 2019.  She lodged her non-refoulement claim on 13 June 2020 alleging that if refouled, she would be harmed or even killed by her husband because she did not pay his debts.  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2021] HKCFI 1054).

7.  By a Notice of Decision dated 19 October 2020, the Director of Immigration (“the Director”)  had 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 requested that her petition/appeal be dealt with on paper and the Board accepted her request.  By its decision dated 22 February 2021, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [101] to [146], the Board accepted that the applicant had been assaulted and threatened by her husband, but the incidents were private in nature, and having regard to all the circumstances, including the frequency and severity of her husband’s past conduct, it did not consider that she would face any real risk of harm upon her return to Indonesia.  Relevant Country of Origin information (“COI”)  suggested that there is reasonable state protection [147] – [177] and in any event, internal relocation is a viable option [213] – [229].  For the aforesaid reasons, her non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 24 March 2021, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  She did not provide any ground for relief in the Form or in her supporting affirmation.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration, the Judge refused leave for judicial review for reasons set out in [12] - [16] of the JR Decision:

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

13.  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.’

14.  The applicant has not set out any error of the Board in the assessment of her case in support of her application.

15.  The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time and filed a summons in the Court of First Instance for an extension of time to appeal, which was dismissed by the Judge on 17 June 2021.  Hence, she filed a Summons in 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). 

13.  As for (1), the applicant was late by 5 days between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was insignificant.

14.  As for (2), the reasons for the delay, the applicant explained in her supporting affirmation that her delay was caused by her detention by the Immigration Department. 

15.  Be that as it may, the most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision save for saying in her supporting affirmation filed 11 August 2021 that the Judge did not allow her an opportunity to clarify her case and the situation in her country.  It is noted that the applicant did not request for an oral hearing for her application for leave to apply for judicial review of the Board’s decision.  Nor had she indicated even now what relevant clarification she would have provided.

16.  Upon the Judge’s review of the Board’s decision, he did not find the Board had erred in its findings of the facts or the application of the law to the applicant’s case. 

17.  It is clear from the Board’s decision that the applicant’s claim involved domestic violence, and the applicant did not sustain any serious injury that attained the level of minimum severity that may amount to torture.  Relevant COI suggests that there is reasonable state protection and the applicant may reasonably and safely relocate to other parts of Indonesia.  It was perfectly open for the Board to reach its findings and conclusions, and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.

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 11 August 2021.