RE PURBO PILLANINGSIH

CAMP 19/2019

[2019] HKCA 854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 19 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 224 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By a decision dated 21 November 2018 (“the Decision”), Deputy High Court Judge Josiah Lam (“the Judge”) refused to grant leave to the applicant for an extension of time for an application for leave to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 25 October 2016 and the decision of the Torture Claims Appeal Board (“the Board”) dated 8 August 2017. 

2.  On 30 January 2019, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the application for an extension of time to appeal against the Decision to this Court by way of a summons dated 31 January 2019.  Pursuant to the directions of the Registrar of Civil Appeals given on 1 February 2019 and 19 February 2019, the applicant filed her written submissions on 7 March 2019.  The Registrar further directed that it is for this Court to decide whether to determine the application on paper.  We consider it appropriate to determine this application on paper and we do so accordingly.

Background

4.  The applicant is an Indonesian national.  She came to Hong Kong on 15 July 2009 and was permitted to work as a domestic helper until 15 July 2011.  Her employment contract was prematurely terminated on 30 August 2010 and she overstayed since 14 September 2010.  On 7 May 2012, she was arrested by the police for possession of a forged identity card; breach of condition of stay and for taking up unapproved employment. She was convicted and sentenced to sixteen months’ imprisonment.  She first lodged her non-refoulement claim on 25 March 2013 and submitted another written representation on 3 March 2014.  The applicant’s claim was based on her alleged fear that if she were to return to Indonesia, she would be subject to torture and ill-treatment by the loan shark or his men as she was unable to repay the money borrowed by her mother from the loan shark.

5.  By a Notice of Decision dated 25 October 2016, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk, the BOR 3 risk, the persecution risk, and the torture risk. 

The Judge’s Decision

7.  On 13 February 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  The application for judicial review was made after the three-month period as provided under Order 53 rule 4(1) and (2) of the Rules of the High Court (Cap. 4A).  In her supporting affirmation filed on the same day, she said she had not received the Board’s decision and she only learnt from the Immigration Department that her appeal to the Board had been dismissed.  Then she went to collect the Board’s decision in person on 12 February 2018. She further complained the Director and the Board failed to consider the concept of extended state acquiescence; failed to make sufficient enquiry of the conditions in Indonesia; adopted a passive approach and thus failed to achieve high standards of fairness; failed to provide adequate reasons as to why certain country-of-origin information (“COI”) was preferred; cherry-picked information; failed to fully consider relevant materials; and failed to appreciate her fears.

8.  On 21 November 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge gave the following reasons at [27] to [41] for his refusal to grant leave:

“ Discussion

27. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

28. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.^[10] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” (CACV 219/2018 [2018] HKCA 570, para 14(1)).

Late application for leave for judicial review

29. Order 53 Rule 3(1) of the Rules of the High Court reads: –

(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

30. Order 53 Rule 4(1) and (2) of the Rules of the High Court read: –

(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

31. It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is a good reason for extending time. The Applicant must provide good reasons for the Court to grant an extension of time. It is a pre-requisite in late application for leave for judicial review. (CACV 110/2016 Kwok Cheuk Kin, para 17). If the court is not satisfied there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other ground.

32. In the present case, the Board’s decision was issued on 8 August 2017. The Applicant only applied for leave for judicial review six months later on 13 February 2018. Excluding the 3-month grace period for filing, she was still three months late.

33. The Applicant said she did not receive the Board's decision sent to her reported address in August 2017. She had already moved out of that address since February 2017 and she had not informed the authorities. The Applicant claimed she was only aware of the Board's decision when the Immigration Department told her in February 2018 that she had to go back to Indonesia. A friend then advised her to make the current application to the court.

34. If the Applicant really did not receive the Board’s decision in August 2017, it was her own fault because she moved out of her reported address without informing the authorities. Even though she said she took out the current application soon after she knew she had to be removed from Hong Kong, she was late in her application by three months. There was no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent might not be much but discipline should be maintained in the area of public law. The Applicant's application for leave for judicial review involved no issue of general importance and her argument had no merits at all (see below).

35. The Applicant complained the Director and the Adjudicator failed to consider the concept of extended state acquiescence; failed to make sufficient enquiry of the conditions in Indonesia; adopted a passive approach and thus failed to achieve high standards of fairness; failed to provide adequate reasons as to why certain country-of-origin information (“COI”) was preferred; cherry-picked information; failed to fully considered relevant materials and failed to appreciate her fears.

36. As said in paragraph 16 above, I shall deal with the current application in relation to Board’s decision only.

37. The Adjudicator’s report showed he had made detailed inquiry of the Applicant’s claim. The Adjudicator’s approach was not passive. He had engaged in joint endeavour with the Applicant in the screening process.

38. The Adjudicator considered the Applicant’s thoroughly. There was no evidence to show the Adjudicator cherry-picked information.

39. The Adjudicator did not find the Applicant credible. He did not believe her claim. He did not accept she had any fear or risk that justified non-refoulement protection. As such, the Adjudicator need not refer to any country-of-origin information (“COI”) or to go on to consider such issues as internal relocation, state protection and state acquiescence (including its extended concept).

40. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

41.  The current application for leave for judicial review is unjustifiably late. There are no circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. Her late application for leave for judicial review is thereby dismissed.”

9.  By a summons filed on 27 November 2018, the applicant sought to appeal against the Decision.  In her supporting affirmation, she explained that she was not aware of the time limit of her application for leave to apply for judicial review.  She further complained that the Director and the Board failed to consider her case fairly. There was also a lack of legal representation after the Notice of Decision from the Director was issued.

10.  By the Leave Decision, the Judge found the applicant’s intended appeal has no prospect of success as neither in her summons nor her supporting affirmation had she provided any draft or proposed ground of her appeal, or any particulars as to any error in the Decision or why it was unfair or unreasonable.  She merely repeated her arguments that the decisions made by the Director and the Board were unfair.  DHCJ Chan considered that there was plainly no prospect of success in the applicant’s application, see [3] and [4] of the Leave Decision.

The Renew Application

11.  By the summons dated 31 January 2019, the applicant renewed the matter before us.  The applicant did not advance any grounds of appeal in the summons.  In her supporting affirmation, she merely repeated her complaints as put before the Judge at the lower court hearing.  In her written submissions, she advanced the following grounds for her intended appeal:

(i)   she did not have an oral hearing for the application for leave to apply for judicial review and it was unfair that the CFI judges did not hear her case;

(ii)   lack of legal representation and assistance for her claim on the BOR 2 risk;

(iii)   lack of language assistance so that she was not aware of her rights in her claim on BOR 2 risk.  She also did not understand the reason for the dismissal of the said claim;

(iv)   she was not aware that her claims were dismissed by the Director and the Board and that explained why she failed to file her application for leave to apply for judicial review within the prescribed time limit; and

(v)   the authorities acted unfairly and discriminatorily.

Discussion

12.  In Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, the Court of Appeal held that an application for an extension of time is a discrete application separate from the application for leave under Order 53, Rule 3 of the Rules of the High Court (Cap. 4A) and that, for an application made outside the three-month limit, an applicant must obtain an extension of time under Order 53, rule 4(1) before the application for leave can be entertained.

13.  In Kwok Cheuk Kin, Supra at paragraph 47, Lam VP descried the decision on whether to grant an extension of time as an exercise of discretion involving a multi-faceted assessment.  He said of such a decision:

“This Court will not disturb such assessment unless an applicant can pinpoint an error of law or principle, reliance on irrelevant consideration or failure to have regard to relevant consideration on the part of the first instance judge, or show that the decision is clearly wrong….”

14.  As rightly found at [31] to [34] of the Decision, the applicant failed to provide any good reason for the delay.  The alleged failure to receive the Board’s decision was caused by the applicant’s own fault not to update her latest address with the court. 

15.  Turning to the merit of the applicant’s case, the Judge had duly explained at [35] to [40] of the Decision that the applicant’s case was dismissed on the issue of credibility and the Board did not accept that she had any fear or risk of harm that justified non-refoulement protection.  Having read the full decision of the Board, we take the view that it was perfectly open to the Board to come to its conclusion on the lack of real risk.  As this court repeatedly emphasised, determination of merits of the case is primarily a matter for the Board, whose role will not be usurped by the court.  In our view, the applicant fails to show that the Board committed any error in arriving at this conclusion. 

16.  In our view, nothing contained in the applicant’s summons or written submissions constitutes a valid ground of appeal.  The complaints of lack of legal and language assistance in relation to her claim on BOR 2 risk are new arguments which we would not entertain.

17.  For these reasons, we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal, and the summons of 31 January 2019 is dismissed accordingly.

18.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.