RE NUR AZIZAH

CAMP 338/2022

[2023] HKCA 375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 338 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2532/2018)

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J U D G M E N T

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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 14 May 2020 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 13 February 2018 (“the Board’s Decision”)  dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  dated 29 May 2015 and 24 November 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 5 January 2007 as a foreign domestic helper, but after the termination of her employment contract she overstayed, and was arrested by the police on 19 September 2013.  On 23 January 2014, she lodged a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by a loan shark and her (the loan shark’s)  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 and a Notice of Further Decision respectively dated 29 May 2015 and 24 November 2016, the Director decided against the applicant’s claim.  The Director’s Decisions 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 2 December 2016, the Board dismissed the applicant’s appeal by its Decision.  In dismissing her appeal, the Board found that the applicant’s evidence on her claims and alleged fears was unreliable and incredible.  In any event, state protection and suitable options of internal relocation were available to her.

6.  The applicant filed a Form 86 on 12 November 2018 seeking to judicially review the Board’s Decision.  The applicant was absent on the hearing day of her application on 26 April 2019 and her application was dismissed for want of prosecution.  She took out a summons returnable on 11 July 2019 for appeal against the said Order out of time.  However, she was also absent on the hearing day and her summons was dismissed for want of prosecution.  By another summons dated 21 August 2019, she applied to set aside the ex parte Order dismissing her summons and for extension of time for her appeal.  The judge set aside the ex parte Order and heard her application for leave to apply for judicial review.

The Judge’s decision

7.  The applicant’s Form 86 set out the following grounds which have been summarised by the Judge at [12] of the CALL-1 Form dated 14 May 2020 as follows:

“1.  There was no legal representation or advice for her appeal.

2.  The hearing bundle was given to her shortly before the appeal hearing without translation and she did not understand it.

3.  The Board relied upon not reliable, outdated or hearsay materials.

4.  The BOR 2 risk was assessed without screening.

5.  The Board did not make proper enquiry and understand her situation before dismissing her claim.”

8.  In her supporting affirmation, she raised various complaints about the Board and the adjudicator, including that the adjudicator’s “credibility was found questionable” and that he had relied on sources of news “which is not official recognized or it is simply hearsay”.

9.  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 the following reasons in refusing leave to apply for judicial review at [13] to [21] of the CALL-1 Form:

“13.  The applicant’s application is late for about 6 months (deadline being 13 May and her application was on 12 November)  She was unable to give any explanation for the delay. However, I have to consider if she has reasonable prospect of success in order to determine time extension should be granted to her for her application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 §27(3).

14.  She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing. Her duty lawyer had explained the Director’s Decision to her. Her friend had explained the hearing bundle and the Board’s Decision to her.

15.  I put the Board’s findings to her and asked if she had any comments on them. She said that she had no comments.

16.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage. Ground (1)  fails.

17.  The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 held that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire. Ground (2)  fails.

18.  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.’

19.  It is clear that Ground (2)  is inconsistent with what she said in court; Ground (3)  is her opinion without evidence or particulars in support of it; Ground (4)  is not true and Ground (5)  is only her personal opinion.

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

CONCLUSION

21.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for her to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

The present application for extension of time to appeal

10.  The applicant’s last known address in her Form 86 was at 152 Fuk Wa Street, Sham Shui Po.

11.  As mentioned above, despite requesting for an oral hearing, the applicant was absent at the hearing of her leave application before the Judge on 26 April 2019 and her application was dismissed for want of prosecution (see the Judge’s decision dated 26 April 2019 at [2019] HKCFI 1121).  In the interim, she took out two summonses in an attempt to restore her leave application before the Judge.  In these interim summonses (the later one being dated 21 August 2019), her address was stated to be in Kam Tin, Yuen Long (“the Yuen Long Address”).

12.  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 Yuen Long Address on 14 May 2020, and were not returned undelivered.

13.  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 14 May 2020. 

14.  The applicant subsequently, on 8 December 2020, notified the court of yet another change of address, which was now said to be 16 Fung Yi Street, To Kwa Wan (“the To Kwa Wan Address”).

15.  The applicant thereafter took out a summons in the Court of First Instance on 14 June 2022 seeking extension of time to appeal, in which her address was stated to the To Kwa Wan Address.  In her supporting affirmation filed on the same date, she deposed:

“I am late to appeal. I am requesting for an extension of time.”

16.  The applicant’s application to appeal out of time was dismissed by the Judge on 2 September 2022[6].

17.  By a summons filed on 6 September 2022, the applicant renewed her application for an extension of time to appeal before this court, wherein she merely stated that she wished to “challenge the decision”.  In her supporting affirmation, she admitted she was “late to appeal” and asked for an extension of time.

18.  In her written submissions lodged on 20 September 2022, the applicant repeated the factual background to her claim, on which she relied as supporting her fear of returning to Indonesia.

19.  By a letter dated 9 March 2023, the applicant informed the court that she wished “to withdraw [her] appeal application”, asked the court to “cancel all [her] case in Hong Kong” and that since it was now safe for her to return to Indonesia, she wished to do so as soon as possible.

20.  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.

Discussion

21.  Notwithstanding that the applicant now intends to withdraw her application for extension of time to appeal, her application, which for the reasons set out below we consider to be delayed without reason and unmeritorious, is liable to be dismissed in any event.

22.  As noted above, the Judge’s Decision was sent to the last known address of the applicant (which at the time was the Yuen Long Address)  and was not returned undelivered. The inference to 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.

23.  It was incumbent upon the applicant to notify this court of any change of address in good time and without delay.  She has not only failed to do so, she has also failed to explain in her applications for extension of time (before the Judge and now before this court)  as to the date she moved to a new address, and how and when she had eventually come to learn of the Judge’s decision.  The applicant must bear the consequence for such failures.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

24.  The intend appeal also in any event lacks merit, as the applicant has not 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. 

25.  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.

26.  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.

27.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

28.  Further, the applicant’s complaint of prejudice by reason of her lack of proficiency in English is unfounded and of little or no merit.  We note that she was able to, either by herself or with assistance from others, lodge with the court applications and submissions written in comprehensible English. 

29.  For completeness, we should mention that the applicant informed the court by letter dated 31 January 2023 that she was being detained at Castle Peak Bay Immigration Centre, and made a request for “bail”, as to which she was informed that such a request was not the subject matter being determined by this court in this application, and that she should seek independent legal advice as to how to proceed with regards to matters concerning her detention and release.

30.  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 6 September 2022 is accordingly dismissed.