RE CHANDRA AMELIA

CAMP 176/2022

[2022] HKCA 1177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 176 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1621 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):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge P Li (“Judge”) on 20 May 2021[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 6 June 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 27 September 2018 rejecting the applicant’s non-refoulement claim.

2.  On 22 December 2021, the Judge refused to extend the time for the applicant to appeal against his decision of 20 May 2021.[2]

Background

3.  The applicant is an Indonesian national, born in 1982.  She came to Hong Kong in 2008 to work as a domestic helper.  Despite the fact that her permission to stay here expired on 20 February 2012, she did not depart.  In 2015 she was arrested for overstaying and taking up unlawful employment, and was convicted and sentenced to 5 months’ imprisonment.  In a letter to the Immigration Department in August 2015, she asked not to be returned to Indonesia because she would be killed by her parents’ lender if she returned.  She completed a Non-refoulement Claim Form on 21 August 2018.  Her claim, summarized at [19] of the Board’s decision, was based on the fear that, if returned to Indonesia, she would be at risk of being killed and her house re-possessed by a moneylender known as Bang Bang who had lent money to her parents.

4.  By notice of decision dated 27 September 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held by the Board on 23 April 2019, but the applicant elected not to give any evidence.  The Board however had before it the record of the applicant’s interview with the Immigration Department during which she was asked various questions, and duly assessed her claim on the basis of the available materials.  The Board noted that the applicant made no claim for protection in Hong Kong until August 2015, seven years after her first arrival in October 2008, that the applicant had safely returned to Indonesia for several months after the end of her first employment contract in Hong Kong, and that on the applicant’s own account she had been threatened by Bang Bang on only one occasion in 2008 and had heard nothing further from him or indeed anyone in connection with the loan in the years that had since elapsed.

6.  In sum the Board found that there was no continuing threat of any description to the applicant, but that even if any threat did exist, it could be avoided by the applicant by relocation away from her home village.  Consequently the Board concluded that there was no real risk of harm in the event of refoulement, and dismissed the applicant’s appeal in relation to all applicable grounds.

The Judge’s decisions in the court below

7.  On 14 June 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  The applicant’s complaints, as stated in her supporting affirmation, included failure to conduct sufficient inquiry into relevant country of origin conditions, lack of sufficient basis to conclude on the lack of BOR 3 risk, and failure to consider her fear properly.

8.  The Judge fixed a hearing of the application on 9 February 2021, but the applicant did not attend.  On 20 May 2021 the Judge issued his decision refusing to grant leave to apply for judicial review, stating at [19] – [21] of the Form CALL-1 as follows:

“ 19. This court fixed a hearing on 9/2/2021. The applicant did not attend. The notice of hearing was sent to her last known address as recorded in the Form 86. There was no return mail. She has the duty to update her address and must bear any consequence of such failure. This court proceeded to deal with her leave application on paper.

20. The adjudicator had analyzed her evidence in detail. There were important aspects which severely undermined her credibility. I agree with the findings of the adjudicator. As to the COI, the adjudicator must have reviewed the COI listed in the decision of the Director, they are most updated at the time of the hearing. In any event, the applicant has not pointed out any aspects which are inaccurate.

21. In my view, there is no error of law and procedure.  Given the evidence submitted by the applicant, I find the TCAB decision reasonable.”

9.  The applicant failed to appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A) (“RHC”).  On 9 June 2021, she took out a summons to seek an extension of time to appeal against the decision of the Judge, stating that she did not receive the decision on time.

10.  Upon consideration of the documents only and without a hearing, on 22 December 2021, the Judge refused to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal, and consequently dismissed the summons.

The renewed application before this Court

11.  After a long delay, on 31 May 2022, the applicant filed a summons in this Court to apply again for an extension of time to appeal against the Judge’s refusal to grant leave for judicial review.  In her summons and supporting affirmation, the applicant merely stated that she did not receive the Judge’s decision.

12.  The applicant lodged written submissions on 14 June 2022.  Pursuant to RHC Order 59 rule 14A, we consider it appropriate to deal with the present application on paper without an oral hearing.

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

14.  The delay between the Judge’s refusal of leave for judicial review and the applicant’s application to the Court of First Instance for extension of time was relatively short, but there was a long unexplained delay thereafter before she renewed her application for extension of time in this Court.  The applicant must demonstrate real prospects of success in her appeal in order for time to be extended.

15.  In assessing the merits we apply the well-established legal principles.  The function of judicial review is not to provide a further avenue of appeal.  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.  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 advanced by the applicant.  If no viable ground is put forward for interfering with the judge’s decision, 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.

16.  The applicant has not identified any grounds of appeal at all in the documents filed.  In her written submissions, she simply reiterated the background of her claim, saying that she had become the target of the moneylender, and requested the Court of Appeal to grant her permission to appeal.  There is nothing to suggest that the Board made any reviewable error amenable to judicial review or that the Judge made any error in his decision to refuse leave for judicial review.

17.  There is therefore no prospect of success in the intended appeal.

18.  For these reasons, we refuse to extend time for appeal and dismiss the applicant’s summons.

[1]  [2021] HKCFI 1408.

[2]  [2021] HKCFI 3759.

[3]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[6]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).