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CAMP 255/2022
[2022] HKCA 1665
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 255 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 196 OF 2019)
________________________
| BETWEEN |
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WIDAYANTI MANDASARI |
Applicant |
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and
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TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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and
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
________________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Judgment: |
10 November 2022 |
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JUDGMENT
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Hon Chow JA (giving the Judgment of the Court):
1. On 15 July 2022, the Applicant took out a summons to apply for “leave to appeal” out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 17 June 2022 refusing to grant the Applicant an extension of time to appeal against the Judge’s earlier order of 8 April 2022 (“the Order”) refusing to grant her leave to apply for judicial review.
2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 2 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 March 2018 rejecting the Applicant’s non-refoulement claim.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
4. The Applicant is a national of Indonesia. She had been working as a foreign domestic helper in Hong Kong since 2008. Her last employment contract was terminated prematurely on 19 March 2016. She did not depart after the expiry of her limit of stay, and had overstayed since 19 June 2016. On 5 July 2016, she lodged a non-refoulement claim, alleging that, if refouled, she would be discriminated against because her son was born out of wedlock. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 997).
5. By a Notice of Decision dated 22 March 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
6. The Applicant appealed the Director’s decision to the Board. On 2 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:
“The Board accepted the applicant’s concerns that she might be discriminated and her son would be left with no care upon her refoulement. However, it concluded that neither concern attained a level of severity which warranted an international protection [25]. The Board found that there was no evidence of severe pain and suffering or of state involvement [29]. It also found that the difficulties of returning could be alleviated by the support from her family [33]. For these reasons, the Board rejected her claim and dismissed her appeal.”
THE JUDGE’S DECISION
7. On 22 January 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. The Judge heard the Applicant on 7 February 2022.
8. On 8 April 2022, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:
“[12] Before me, the applicant said that she was assisted by the duty lawyer before the immigration officer. She had told her stories to the immigration officer. Before the Board, she was allowed to speak freely. She had two children and she wanted to stay in Hong Kong.
[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 CA, §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] There is no valid reason from the applicant 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.”
9. On 17 June 2022, the Judge refused the Applicant’s application by summons dated 16 May 2022 for an extension of time to appeal the Order ([2022] HKCFI 1627).
THIS APPLICATION
10. By a summons taken out on 15 July 2022, the Applicant applied for leave to appeal out of time against the order of the Judge dated 17 June 2022. In the summons, the Applicant stated that the grounds of her proposed appeal were as follows: “I would like to reject and review the decision made by the Court. They disregard my dangerous situation.”
11. In her supporting affirmation filed on the same date, the Applicant also stated: “I would like to reject and review the decision made by the Court. They disregard my dangerous situation.”
12. The Applicant failed to lodge her written submissions on or before 29 July 2022 as directed by the Registrar of Civil Appeals on 15 July 2022. Accordingly, she is deemed to have abandoned her right to rely on written submissions.
DISCUSSION
13. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.
14. In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
15. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
16. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).
17. Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
18. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 8 April 2022, and has failed to raise any viable ground of appeal against the Order.
19. There is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
20. The application for extension of time to appeal is refused, and the Applicant’s summons of 15 July 2022 is dismissed.
(Thomas Au)
Justice of Appeal |
(Anderson Chow)
Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 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.
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