RE UNENGSIH

CAMP 56/2023, [2024] HKCA 586

On appeal from [2022] HKCFI 825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 56 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 243/2019)

____________________

____________________

___________________

J U D G M E N T

___________________

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 28 March 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 19 December 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 6 December 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 26 October 2009 as a foreign domestic helper, but she overstayed after the premature termination of her employment contract and was arrested by the police on 14 October 2016.  Thereafter, she raised a non‑refoulement claim by way of a written signification dated 16 January 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by her creditor and/or her husband.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 6 December 2017, 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 19 November 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing her appeal, the Board found, inter alia, that the injuries allegedly sustained by the applicant at the hands of her creditor (and his associates) did not attain the minimum level of severity.  In any event, the Board took the view that adequate state protection and suitable options of internal relocation were available to the applicant to minimise the risk of harm, if any.

The Judge’s decision

6.  The applicant filed a Form 86 on 25 January 2019 seeking to judicially review the Board’s Decision without setting out any grounds.

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 his reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL‑1 Form:

“12.     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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 

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

14.  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.’

15.  There is no valid reason from the applicant to challenge the Board’s Decision. 

16.  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. 

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

CONCLUSION

18.  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 stated in her Form 86 that her address of service at the time was at the Castle Peak Bay Immigration Centre.  On 21 May 2021, she informed the court that she had moved to No.1-3 Morrison Hill Road, Wan Chai (“the Address”).  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 Address on 28 March 2022, and were not returned undelivered.

9.  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 28 March 2022.

10.  The applicant thereafter took out a summons in the Court of First Instance on 7 June 2022 seeking extension of time to appeal, in which her address was stated to be at Portland Street, Mong Kok (“the Mong Kok Address”).  The applicant claimed that she received the CALL-1 Form on 28 March 2022, but she could not submit “[her] application” in time because she “could not arrange money”.  In her supporting affirmation filed on the same day, she stated that she did not wish to return to Indonesia, as her “loan shark will kill [her]” and that she felt safe in Hong Kong.

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

12.  By a summons filed on 8 February 2023, the applicant renewed her application for an extension of time to appeal before this court.  In her supporting affirmation, she claimed that she was unaware of the 14-day period within which she was permitted to lodge an appeal, and that she “never received any decision made by the High Court on [her] residential address” and that she was informed of the same by an Immigration Officer.

13.  In her written submissions lodged on 22 February 2023, the applicant referred, inter alia, to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.  

Discussion

14.  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.

15.  As noted above, the Judge’s Decision was sent to the last known address of the applicant at the time (i.e. the Address) and was not returned undelivered.  The inference which should 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.  The applicant’s claimed ignorance of the rules on limitation for the lodging of appeals is clearly of no merit.

16.  Moreover, the applicant herself frankly admitted in the summons filed on 7 June 2022 in the court below (for extension of time to appeal) that she did in fact receive the CALL-1 Form on 28 March 2022.  We are therefore wholly unconvinced by her starkly different position as claimed in her affirmation filed on 8 February 2023 filed for the present application, where she claimed that she had never received the CALL-1 Form at the Address, until informed of the same by an Immigration Officer.

17.  In any event, even if the CALL-1 Form was not received by the applicant at the Address (as she claims), it is incumbent upon the applicant to update the court of any change to her correspondence address promptly, in this case her move to the Mong Kok Address, and she must bear the consequences of her failure to do so. 

18.  In the circumstances, we consider that the applicant has failed to provide any reasonable explanation for the delay in lodging her intended appeal.  

19.  The delay in the applicant’s renewal of her application before this court was grossly out of time, by around 6 months, and the present application is liable to be dismissed on this basis alone.  We have however nonetheless proceeded to consider the merits of the intended appeal.

20.  The applicant has not in any event 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.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in her written submissions had not been applied in the consideration of her appeal by this court or in processing of her non-refoulement claim.

24.  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 8 February 2023 is accordingly dismissed.