RE RAHAYU ISTIYATI

CAMP 299/2022, [2023] HKCA 540

On Appeal From [2022] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 299 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 99 OF 2022)

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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 16 May 2022[1] which refused to extend the time for her to apply for judicial review and dismissed her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation to support her application. She has also put in a written submission to support her application. By a letter dated 29 March 2023 received by the court on 31 March 2023, the applicant indicated she wants to go back to her country and wishes to close her case.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against two decisions of the Director of Immigration (“the Director”) which rejected her non-refoulement claim.

5.  The applicant is a national of Indonesia aged 43. She first came to Hong Kong in July 2006 to work as a foreign domestic helper. When her employment contract was terminated in April 2009, she did not depart and overstayed in Hong Kong. On 9 August 2012, she was arrested by the police. On 7 November 2012, she lodged a torture claim[2] which was rejected on 18 March 2013. In May 2013, she raised a non-refoulement claim based on fear of being harmed or killed by her husband and his creditor due to her failure to repay her husband’s debt. The details of the applicant’s claim were set out in the decision of the Director dated 6 May 2016 at [8]. We will not repeat them.

6.  By two decisions dated 6 May 2016 and 5 September 2017, the Director rejected the applicant’s claim. The first decision covered the BOR 3 risk[3] and persecution risk[4] grounds while the further decision related to the BOR 2 risk[5] ground.

7.  The applicant appealed the Director’s decisions to the Board. The Board heard the appeal on 3 October 2017 and by its decision dated 20 October 2017, the Board dismissed the appeal. The Board considered the applicant’s evidence was largely based on speculation and hearsay and not credible. It did not accept that she had been assaulted and threatened by her husband’s creditor or by her husband. In any event, even on the applicant’s case, it did not meet the requirements of the applicable grounds. The Board thus concluded that the applicant failed to establish her entitlement to non-refoulement protection.

8.  On 27 January 2022, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision. She did not provide any grounds for seeking relief.

9.  Order 53 rule 4(3) of the Rules of the High Court, Cap. 4A, requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose. The applicant’s Form 86 was more than four years late. The applicant had not given any explanation for the serious delay.

10.  The Judge dealt with the application on paper. By a Form CALL-1 dated 16 May 2022, the Judge refused the application. He gave his reasons in [16] to [22] as follows:

“16. As mentioned in paragraph 1 above, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay is significant and serious. I shall first consider the prospect of the intended judicial review.

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

18. 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).

19. 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.”

20. The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim. Her ground in support of her application does not assist her application.

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.”

11.  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.

12.  By a summons filed on 17 June 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 27 July 2022[6], he refused the application.

13.  On 11 August 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

14.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court 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 more than two weeks late when she made the application for extension of time. In the application for extension of time made to the Judge, the applicant explained that she was not familiar with the judicial process and did not know the time limit. In the present application, the application did not give any explanation for the delay. Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.

16.  In assessing 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].

17.  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 Board afresh as if it is a fresh application for judicial review.

18.  In the present case, other than stating in the supporting affirmation that she disagreed with the decisions of the Director and the Board, the applicant did not provide any ground to support the application or the intended appeal.

19.  In the written submission, the applicant complained that she was not provided with language and legal assistance. She asserted that there was unfairness in the procedure and her case had not been determined fairly.

20.  For the reasons set out below, we are of the view that this renewed application has no merits:

(1)  What was stated in the written submission were new assertions not raised in the application before the Judge. It is well established that it is not permissible for a litigant to raise new, and especially fact-sensitive, grounds on appeal.

(2)  In any event, what was stated in the written submission were broad and general assertions unsupported by particulars.

(3)  Importantly, the Board’s decision was made in October 2017. The Form 86 in the Court below was filed in January 2022, which was more than four years later. It cannot be disputed that the application for judicial review is seriously out of time. The applicant had given no explanation for the delay. The Judge was correct in refusing to extend the time for applying for judicial review and dismissing the application for leave to apply for judicial review.

(4)  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and.

21.  We further take into account the applicant’s letter of 29 March 2023 (see [2] above) requesting not to proceed with her application.

22.  In all the circumstances and as the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 11 August 2022.