RE WIJI LESTARIASIH

CAMP 316/2022

[2022] HKCA 1458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 316 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1104 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 28 June 2022[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 14 March 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 27 March 2018 rejecting the applicant’s non-refoulement claim.

2.  On 25 August 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is an Indonesian national, born in 1986. She entered Hong Kong as a domestic helper on 6 December 2014, but when her contract was prematurely terminated, she failed to leave, and had overstayed since 15 November 2015. She was arrested by the police on 26 May 2016. She lodged a non-refoulement claim on 29 May 2016. Her claim was based on the fear that, if she returned to Indonesia, she would be harmed or killed by her ex-husband, ZF. She said she was Muslim but ZF, who was a Christian, had abused her frequently in order to coerce her to convert to Christianity. The detailed factual contents of her claim were set out at [10] to [26] of the Board’s decision dated 14 March 2019.

4.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6] By notice of decision dated 27 March 2018, the Director rejected the applicant’s claim.

5.  The applicant appealed to the Board against the decision of the Director. The Board held an oral hearing on 28 February 2019, at which the applicant gave evidence with the assistance of an interpreter and answered the Board’s questions. At the end the Board did not find the applicant a truthful witness. The Board found that she evaded answering important questions and was deliberately untruthful in parts of her evidence. The Board accepted she had been ill-treated to some extent by ZF but considered that the applicant had exaggerated her claim, and did not believe that she would be at any real risk of harm of the requisite level upon return to her country. The Board also found that, in any event, the applicant, who used to live in East Java, could safely relocate within the country to Jakarta, and that the risk of ZF accidentally bumping into her there was extremely remote. In the result, the Board dismissed the appeal.

The Judge’s decisions in the court below

6.  On 24 April 2019, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision, but she did not specify any ground for judicial review either in the Form 86 or in her affirmation.

7.  Based on consideration of the documents alone, on 28 June 2022 the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out at [13] – [18] of the Form CALL-1 as follows:

“ 13. 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).

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

15. 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.’

16. The applicant has not been able to raise any valid ground in support of her application. There is no valid ground to challenge the Board’s Decision.

17. 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.

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

8.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but only took out a summons on 21 July 2022 to seek an extension of time to appeal against the decision of the Judge. In her supporting affirmation, the applicant simply said she did not receive the order and judgment within 14 days and should be given a reasonable opportunity to present her case.

9.  The Judge determined the application for extension of time on paper without an oral hearing. In his decision dated 25 August 2022, the Judge dismissed the application as he considered that there was no realistic prospect of success in the intended appeal.

The renewed application before this Court

10.  By summons filed on 26 August 2022, the applicant seeks an extension of time from this court for her to appeal against the decision of the Judge refusing to grant leave for judicial review. In her accompanying affirmation, the applicant simply said she did not agree with the High Court’s decisions. In her written submissions, the applicant reiterated there were threats to her life in Indonesia and requested the court to grant leave.

11.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. The applicant’s application to the Judge for extension of time to appeal was made 9 days after the deadline for appeal. Although there is no valid explanation for the delay, we have considered the merits of the intended appeal to see whether time should be extended.

13.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.  In the present case, the Board rejected the applicant’s non-refoulement claim based on its adverse views of her credibility, concluding that there was no reliable evidence that she would be subject to any real risk of harm of the requisite level of severity if she returned. The Board further found that internal relocation to Jakarta would be a viable and safe option. These findings are within the province of the Board, and the court will not interfere with such assessments unless they are vitiated on public law grounds. The applicant had failed to set out any grounds for judicial review, nor can we see any potential grounds from the materials before us.

15.  The applicant has also failed to show how the Judge has erred in refusing leave for judicial review. Having considered the materials before us, we share the Judge’s view that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

16.  We do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.