RE SALBIYAH

CAMP 130/2021

[2021] HKCA 1742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 130 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 748 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  By a summons dated 28 April 2021, the applicant applied to this Court for “leave to appeal” against the order made by Deputy High Court Judge Bruno Chan (“Deputy Judge”)  dated 13 April 2021 refusing to grant to the applicant extension of time ([2021] HKCFI 890)  (“EOT Decision”)  to appeal against the Deputy Judge’s earlier order dated 7 September 2020 refusing to grant an extension of time to apply for leave to apply for judicial review and dismissing her application for leave to apply for judicial review ([2020] HKCFI 2190)  (“Leave Decision”).

2.  The intended judicial review was directed at the decision dated 17 May 2017 of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 9 August 2016 and 19 April 2017 rejecting her claim for non-refoulement protection (collectively “the Director’s Decisions”).

3.  Having considered the paper, we are of the view that it is appropriate to determine the summons without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Indonesia.  She entered Hong Kong on 29 April 2008 to work as a foreign domestic helper but did not depart after her employment contract was prematurely terminated on 3 July 2011.  She overstayed and was arrested and referred to the Immigration Department for investigation, the applicant raised a torture claim which was later taken as a non-refoulement claim.

5.  The applicant’s claim was based on an alleged fear that if she were to return to Indonesia, she would be harmed or killed by her abusive husband and / or by her creditor for failing to repay her loan.  The factual details of the applicant’s claim were summarised by the Deputy Judge in [2] - [5] of the Leave Decision.

6.  By a Notice of Decision dated 9 August 2016 and a Notice of Further Decision dated 19 April 2017, the Director rejected the applicant’s non-refoulement claim.  His decisions covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].  Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from her husband and/or her creditor upon her return to Indonesia as low.  The Director considered that state protection would be available to the applicant and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available and reasonable.

7.  On 19 August 2016, the applicant lodged an appeal to the Board against the Director’s Decision dated 9 August 2016.  She attended an oral hearing on 24 April 2017 but decided not to answer any questions.  The Board dismissed her appeal on 17 May 2017 and confirmed the Director’s Decisions.  The Board found the applicant’s claim doubtful in the absence of any evidence from her during the hearing when she declined to corroborate and clarify her claim.  It further found that state protection was available and internal relocation viable.

The Leave Decision

8.  On 30 April 2018, the applicant filed a Form 86 and a supporting affirmation to apply for leave for judicial review of the Director’s Decision dated 9 August 2016 and the Board’s Decision.  No ground of judicial review was given in the Form 86 or supporting affirmation.  She also did not request for an oral hearing.

9.  By the Leave Decision of 7 September 2020, the Deputy Judge refused to grant extension of time to apply for leave for judicial review and dismissed her application for leave to apply for judicial review for the following reasons:

“13. As the last day of the three-month period for her to file her Form 86 fell on 17 August 2017, the Applicant was therefore 8 ½ months late with her application, and in considering whether to extend time, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 383.

14. In the Applicant’s case, a delay of 8 ½ months must be considered as very substantial and excessive, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent to her last reported address without being returned through undelivered mail, I do not see any good reason for her serious delay.

15. As for the merit, if any, of her intended application, as noted above the Applicant did not put forward any proper ground for her application, and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where 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.

17. In the Applicant’s case, 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 her 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.

18. 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.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her application.”

The EOT Decision

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.  On 17 November 2020, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  She is late for two months.

11.  By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal as a delay of two months must be considered as substantial and she had not provided any good or valid reason for her substantial delay.  As to her contention that she did not receive the Leave Decision as she had moved to a new residence, the Deputy Judge held that it was her duty to inform the authorities as soon as practicable if she had changed her address, and that she should bear the consequence of her failure to do so.  The Deputy Judge also noted that in the absence of any errors in the decision as identified by the applicant, there was no chance of success in her intended appeal.  Accordingly, the EOT Summons was dismissed on 13 April 2021.

The Present Application

12.  By a summons dated 28 April 2021, the applicant sought leave from this Court to appeal against the EOT Decision.  She did not put forward any viable grounds of appeal in the summons or the supporting affirmation dated 28 April 2021.  In her written submissions dated 17 June 2021, the applicant complained that there was a lack of legal representation and language assistance for her BOR2 assessment before the Director and that she had no understanding of the process or reasons and all acts of the authorities had been highly discriminatory and unfair to her.

Discussion

13.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we would treat the present application as a renewed application for extension of time to appeal.

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted: Re Farrukh Zaib [2020] HKCA 408 at [22].

15.  We consider the delay of almost two months to be substantial and the applicant had not provided any satisfactory explanation for the delay.  As repeatedly emphasised by this Court, it is the duty of a litigant to give the Court an address to which correspondence or notice can come to her attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant: Re Hasmi Rizwan Imran [2018] HKCA 439 at [15]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9].

16.  As the applicant did not have any satisfactory explanation for her delay in bringing the intended appeal, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

17.  In assessing the merit of an intended appeal, the Court of Appeal would focus on the decision of the Deputy Judge and would only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  Nowhere in the summons dated 28 April 2021, the supporting affirmation and the written submissions dated 17 June 2021 did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  The intended appeal must fail on this basis alone.

19.  The arguments in her written submissions dated 17 June 2021 were new and not raised before the Deputy Judge.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below: Re Qadir Sher [2018] HKCA 160 at [11].  Therefore, the Court of Appeal will not entertain these new grounds.

20.  In any event, those grounds are devoid of merits.  It is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as she desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  The Court documents filed in this application and in the Court below were all in English.  It is thus clear that either the applicant was herself conversant with the English language or she had access to language assistance of her own if she found it necessary.  It is therefore clear that the applicant was not in any way prejudiced.

21.  It is well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  In any event, the assessment of her non-refoulement claim by the Board and the consideration of her application for leave to apply for judicial review by the Deputy Judge were thorough and fair.  We consider that a high standard of fairness had been achieved in the overall process of the determination of her non-refoulement claim.  Accordingly, there is no merit in her intended appeal.

22.  For the above reasons, the intended appeal has no prospect of success.  The application for extension of time to appeal is refused and the applicant’s summons dated 28 April 2021 dismissed.