RE SIH MAKARTININGTYAS

CAMP 398/2021

[2022] HKCA 340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 398 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2739 OF 2018)

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J U D G M E N T

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

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 28 June 2021 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 1660). An earlier application for extension of time to appeal was refused by the Deputy Judge on 9 September 2021 (“the EOT Decision”) ([2021] HKCFI 2569).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 25 October 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 February 2018 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the papers, we are of the view that it is appropriate to determine this application 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 last arrived in Hong Kong on 24 August 2012 as a domestic helper.  Her employment contract was prematurely terminated on 13 July 2014 and she overstayed in Hong Kong since 28 July 2014.  On 7 July 2015, she surrendered to the Immigration Department.  She lodged a non-refoulement claim by way of an undated written representation received by the Immigration Department on 16 May 21016 and a written representation dated 17 May 2016, on the basis that if refouled, she would be at risk of being harmed or killed by her ex-husband.  Details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 26 February 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  She attended and gave evidence at an oral hearing before the Board on 7 June 2018.  The Board dismissed her appeal on 25 October 2018 and confirmed the Director’s Decision.  Having assessed the evidence, the Board considered that the level of risk of the applicant being killed or subjected to ill-treatment by her husband to be very low and that she failed to substantiate her case on all applicable grounds.  The Board also considered that state protection and internal relocation were available to her.  Accordingly, the Board dismissed her appeal.

The Leave Decision

7.  On 3 December 2018, the applicant filed a Form 86 with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decision.  However, no ground of review was provided by the applicant in her Form 86.  In her supporting affidavit, she only stated that she would be killed and her life would not be safe in Indonesia.

8.  After considering her application on paper, by the Leave Decision, the Deputy Judge dismissed her application for leave to apply for judicial review for the following reasons:

“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 grounds in support of her application do not assist her in this application. They had already been considered by the Board and the Board had made its findings.

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.

CONCLUSION

17. I refuse to grant the applicant leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.”

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy 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.

10.  On 24 August 2021, the applicant filed a summons together with a supporting affidavit for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, she was over one month late with her intended appeal.  In the EOT Summons, no ground of appeal or reason for her delay was given by the applicant.  In her supporting affidavit, she only claimed that she would be killed and her life would not be safe in Indonesia.

11.  By the EOT Decision, the Deputy Judge held that as the applicant failed to raise any valid ground to show that she had any reasonable prospect of success in her intended appeal, her application for extension of time to appeal should be dismissed.

The Present Application

12.  By a summons and supporting affirmation both filed on 20 September 2021, the applicant reapplied for extension of time to appeal.  No ground of appeal or reason for her delay was stated in the summons.  In her supporting affirmation, she claimed that the Deputy Judge had failed to take all relevant circumstances into account.  She then complained that she failed to understand the judgment completely given the lack of language and legal assistance.  She further claimed that she did not receive the CALL-1 Form on time and did not understand the delivery delay.

13.  Pursuant to the directions given by the Registrar of Civil Appeals on 20 September 2021, the applicant lodged her written submissions on 4 October 2021.  In her submissions, she complained that there was procedural unfairness because of the lack of language and legal assistance before Board and the Deputy Judge.

Discussion

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 success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  We consider that the applicant’s delay over one month is substantial.  Although the applicant claimed that she had not received the CALL-1 Form and did not know the reason for the delivery delay, she provided no evidence in support of her vague and bare allegation.  In any event, as repeatedly emphasised by the 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 shoulders of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].

16.  As such, 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]; and Re MA [2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will 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.  To begin with, the matters raised in her supporting affirmation and written submissions for the present application had not been raised before the Deputy Judge and are all new arguments.  It is well established that this Court will generally not entertain new arguments which are fact‑and‑evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Accordingly, we will not entertain her new arguments.

19.  In any event, those arguments are without substance.  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].  It is also 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].  In any event, she was legally represented in her claim before the Director.  An interpreter was also provided to the applicant before the Director and before the Board (as she gave evidence there without any problems or any complaint).  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.

20.  Further, 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.

21.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 20 September 2021 dismissed.