RE ENDAH RETNOSARI

CAMP 76/2023, [2024] HKCA 642

On appeal from [2022] HKCFI 2143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 76 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 660 OF 2019)

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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 against the decision of Deputy High Court Judge Lung (“the Judge”)  dated 15 July 2022[1] dismissing 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 40.  She was born in Sampung, Ponorogo Regency, East Java Province in Indonesia. She and her family are Muslims.  She last entered Hong Kong on 22 June 2013 to work as a foreign domestic helper.  After her employment contract was prematurely terminated, she did not depart and has since 30 October 2013 been overstaying in Hong Kong.  On 24 November 2013 she was arrested by the police.  She was later convicted for overstaying in Hong Kong and was given a suspended sentence.  On 26 April 2015, the applicant gave birth to her daughter, Endah-Retnosari Rebecca.  The applicant has lost contact with the daughter’s father and no longer recalls his name.  

5.  The applicant sought non-refoulement protection for herself and on behalf of her daughter on 19 April 2014 and 23 November 2015 respectively.  Their claims were jointly assessed in the screening process before the Director of Immigration (“Director”)  and in the appeal before the Torture Claims Appeal Board (“Board”).  The details of their claim were set out in [9] and [10] of the Director’s decision and at [5]-[13], and [28]-[44] of the Board’s decision.

6.  The bases for the applicant’s and her daughter’s claims for non-refoulement protection are twofold.  First, the applicant fears they will be harmed or killed by her father because she has an illegitimate child in Hong Kong and her father had been abusive towards her in the past.  Second, the applicant fears her daughter, who was born prematurely and has multiple health problems, will not be able to receive appropriate medical treatment in Indonesia.  The applicant claims that her father was enraged upon hearing over a telephone call that she had given birth to a daughter out of wedlock and has threatened to kill them both if they return to Indonesia.  The applicant also states that her daughter has complex health issues, including respiratory and neuro-developmental problems leading to physical impairment that requires long-term medical treatment and intensive care.  She claims that Indonesia lacks the advance and affordable medical technologies that her daughter needs and she will be deprived of her right to life if they were to return to Indonesia.

7.  By a decision dated 4 October 2017, the Director rejected the applicant’s and her daughter’s claims having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds. 

8.  The applicant and her daughter appealed the Director’s decision to the Board.  They were legally represented by the Duty Lawyer Service with various grounds of appeal being raised on their behalf.  An oral hearing was held on 26 November 2018 during which the applicant gave evidence and answered questions on behalf of herself and her daughter, who did not take part due to her young age.  The applicant was assisted by an Indonesian interpreter at the hearing. 

9.  By its decision given on 26 February 2019, the Board dismissed their appeal.  In summary, the Board accepted the centrepiece of their claim, but noted that the applicant conceded at the hearing that her father did not really intend to harm her or her daughter.  In light of the evidence, the Board did not consider the applicant’s father’s one-off threat over a telephone call sufficient to establish a real risk of harm entitling them to non-refoulement protection under the applicable grounds.  

10.  As to the daughter’s claim, the Board took into account the relevant legal principles[6], the daughter’s medical condition as shown in the medical reports and the country-of-origin information (COI)  on the availability of national health insurance scheme. The Board found that the daughter will have access to pharmaceuticals and other healthcare services as required in Indonesia.  The Board also found that, even if there may be difficulty in accessing medical service, the daughter has not established substantial grounds for believing that she, though not at imminent risk of dying, would face a real risk of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy and as such.  Further, the Board, while accepting the daughter might face societal discrimination as an illegitimate child, did not consider the situation sufficiently serious to amount to the level of risk envisaged under the applicable grounds.  The Board therefore concluded that the applicant and her daughter failed to establish entitlement to non-refoulement protection under all the applicable grounds.  

11.  On 8 March 2019, the applicant filed a Form 86 with an affirmation to apply for leave to judicially review the Board’s decision.  The application was only made on behalf of the applicant and did not include her daughter.  No grounds for seeking relief were set out in the Form 86 or supporting affirmation.  The applicant did not request for an oral hearing. The Judge dealt with the application on paper.  By a Form CALL-1 dated 15 July 2022, the Judge refused to give leave for applying for judicial review for the reasons set out at [15] to [20] as follows:

“15. 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).

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

17. 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.”

18. The applicant has not been able to raise any valid ground in support of her application. The Director’s Decision dated 4 October 2017 had been dealt with by the Board’s Decision and is not subject to judicial review as there is no exceptional circumstance for her to do so. There is no valid ground to challenge the Board’s Decision.

19. 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.

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

12.  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 29 July 2022.

13.  By a summons filed on 23 September 2022, the applicant applied for an extension of time to appeal the Judge’s decision. In the supporting affirmation, the applicant explained that she only received the court’s decision from the Immigration Department after the time for appeal had expired and that, as a single parent, it had been difficult for her to deal with the appeal.  The Judge dealt with the application on paper, and by his decision handed down on 21 October 2022[7] refused the application.

14.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we 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. 

15.  The applicant was late by seven weeks when she filed the 23 September 2022 summons, which is a significant delay.  In her written submissions, she explained that she ran out of money and had to bring her daughter for regular check-up at the hospital.  We note from the court’s record that the CALL-1 form was sent to the applicant’s address provided in the Form 86 and had not been returned by the Post Office.  While we sympathise with the applicant’s situation and her daughter’s health needs, we do not find the significant delay to have been satisfactorily explained.  Having said that, we would focus on the merits of the intended appeal, which is the most important consideration.

16.  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.

17.  The applicant did not set out any grounds of appeal in her summons or affirmation.  Her written submissions raised the following contentions:  

(1)     The applicant’s case has been determined unfairly and there was procedural unfairness due to lack of legal and language assistance.

(2)  She was not given the opportunity to be heard, and the authorities acted in a discriminatory way aiming only to dispose of her case quickly.   

18.  For the reasons discussed below, we are of the view that the matters put forward by the applicant in her written submissions do not constitute viable grounds of appeal:

(1)  First, the assertions are new grounds which were not raised in the Form 86 or in the supporting affirmation, and had not been considered by the Judge.  It is well-established principle that this court will not permit new ground which is fact-sensitive to be raised for the first time on appeal: Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at [38].

(2)  Second, the applicant’s contention that she has never been provided with language assistance is at odds with the fact that she was assisted by an interpreter proficient in the Indonesian and English languages at the hearing before the Board (see [28] of the Board’s decision).  There is also nothing in the Board’s decision indicating that the applicant had any issue with the interpretation.  

(3)  Further, this court has consistently held that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see, for instance, Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  Moreover, the applicant has failed to demonstrate how the alleged lack of language assistance has inhibited her ability to proceed with the leave application before the Judge.  It would appear from her written submissions lodged for this application that she has been able to obtain assistance for presenting her case.

(4)  Third, on the complaint of lack of legal assistance, we note that the applicant, as well as her daughter, were legally represented at the screening stage before the Director and at the appeal/petition stage before the Board.  This court has repeatedly held that the high standard of fairness does not mandate that a non-refoulement claimant should be provided with free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at [18].  The applicant already had the benefit of legal representation in presenting her case to the Director and the Board, including the preparation of the initial grounds of appeal/petition and the presence of the Duty Service Lawyer at the appeal before the Board.  She has also not pointed to any prejudice occasioned by lack of legal assistance in the application for leave to bring judicial review.

(5)  Fourth, on the complaint that the applicant was not given the opportunity to be heard, it should be pointed out that she did not request an oral hearing in the Form 86 or the supporting affirmation.  The applicant also did not provide any grounds for seeking relief.  In the circumstances, the Judge was entitled to determine the application on the basis of the documents under Order 53 rule 3(3)  of the Rules of the High Court.  

(6)  Fifth, and importantly, the Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that they are erroneous in law or irrational or there is procedural irregularity or unfairness.  However, the Form 86 and supporting affirmation did not set out any grounds for seeking relief or make any challenge to the reasons and findings of the Board.  This being the case, the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.   

19.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  There is no proper basis for this court to disturb the Board’s assessment and findings on the risk of harm and its conclusion that the applicant’s entitlement to non-refoulement protection was not made out under the applicable grounds. 

20.  For the above reasons, the applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 17 February 2023.