RE HARNI SUMIYATI

CAMP 481/2022, [2023] HKCA 1264

on appeal from [2022] HKCFI 2499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 481 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 677/2019)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 23 August 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 15 February 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 24 May 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”); and (ii) the Director’s Decision itself.

Background

2.  The applicant is a national of Indonesia.  She last entered Hong Kong on 8 November 2015 as a foreign domestic helper, but after the termination of her employment contract she overstayed, and was arrested by the police on 8 November 2017.  On 15 November 2017 and 20 November 2017, she lodged a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by her father-in-law and sister-in-law.  The details of the applicant’s claim have been summarised by the Judge at [5] and [6] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 7 January 2019, the Board dismissed the applicant’s appeal by its Decision.  In dismissing her appeal, the Board found that the applicant’s evidence on her claims and alleged fears was unreliable and incredible.  In any event, suitable options of internal relocation were available to her.

The Judge’s decision

6.  The applicant filed a Form 86 on 11 March 2019 seeking to judicially review the Board’s Decision and the Director’s Decision.  In her supporting affirmation, she set out the following grounds which have been summarised by the Judge at [13] of the CALL-1 Form as follows:

“(1) She was not provided with legal assistance or translation service for her appeal.

(2) She was given the hearing bundle shortly before the appeal hearing and she did not understand fully the contents which are in English.

(3) The Board’s Decision was not read to her or translated for her. She only obtained translation service at the Duty Lawyer Office.

(4) The Board had not considered the country of origin of information in relation to women being subjected abusive behaviour in Indonesia.

(5)  The adjudicator of the Board was biased as he had taken some minor issues to determine that her evidence as unreliable without taking into account that the events happened long time ago and she is an asylum seeker.”

7.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [23] of the CALL-1 Form:

“14.  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).

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

16.  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.’

17.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, at §18 held: ‘Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.’

18.  The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, held that the appeal court held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

19.  There is no requirement under the law that the Board’s Decision has to be read over to the applicant. The applicant did not tell the Board that she did not understand the contents of the hearing bundle. Nor was there evidence to show that she was confused at the hearing. The Board was able to assess her evidence. Therefore, Grounds (1) to (3) fail. Grounds (4) and (5) are only her opinions or bare assertions without any evidence in support. The Board had given its reasons for its findings.

20.  The applicant has not raised any valid reason to challenge the Board’s Decision.

21.  The Court 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.

22.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

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

The present application for extension of time to appeal

8.  The applicant’s last known address in her Form 86 was at Portland Street, Kowloon (“the Portland Street Address”).

9.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Portland Street Address on 23 August 2022, and was not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 23 August 2022. 

11.  The applicant thereafter took out a summons in the Court of First Instance on 20 October 2022 seeking extension of time to appeal, in which her address was stated to be at Nanking Street, Jordan.  In her summons and her supporting affirmation filed on the same date, she claimed that she did not receive the “High Court decision” on time, that she disagreed with it and that she wished to appeal against it.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 18 November 2022[6].

13.  By a summons filed on 18 November 2022, the applicant renewed her application for an extension of time to appeal before this court, wherein she merely repeated that she did not receive the decision of the Judge, and that she wanted to apply for an extension of time to appeal.  

14.  In her written submissions lodged on 29 November 2022, the applicant repeated the factual background to her claim, on which she relied as supporting her fear of returning to Indonesia.

15.  However, by a letter dated 17 May 2023, the applicant informed the court that she wished to withdraw “[her] judicial review under court case reference HCAL 677/2019”, as it was now “safe” for her to return to Indonesia, and that she wished to do “so as soon as possible”.

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

Discussion

17.  Notwithstanding that the applicant now intends to withdraw her application for extension of time to appeal, her application, which for the reasons set out below we consider to be delayed without good reason and unmeritorious, is liable to be dismissed in any event.

18.  As noted above, the Judge’s Decision was sent to the last known address of the applicant (which at the time was the Portland Street Address) and was not returned undelivered.  The inference to be drawn is that she has received that letter from the court, and she has had knowledge of the Judge’s decision within the period she was permitted to lodge the intended appeal.

19.  It was incumbent upon the applicant to notify this court of any change of address in good time and without delay.  She has not only failed to do so, she has also failed to explain in her applications for extension of time (before the Judge and now before this court) as to the date she moved to a new address, and how and when she had eventually come to learn of the Judge’s decision.  The applicant must bear the consequence for such failures.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

20.  The intended appeal also in any event lacks merit, as the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

23.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

24.  Further, the applicant’s complaint of prejudice by reason of her lack of proficiency in English is unfounded and of little or no merit.  We note that she was able to, either by herself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 18 November 2022 is accordingly dismissed.