RE TRI ASTUTI

CAMP 226/2019

[2021] HKCA 744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 226 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 597 OF 2018)

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J U D G M E N T

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The Court:

1.  This is the applicant’s application for an extension of time for leave to appeal against the decision of Deputy High Court Judge Josiah Lam given on 30 April 2019 refusing to grant an extension of time for her application for leave 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 dated 1 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 2 September 2016 and 1 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 17 January 2012 to work as a foreign domestic helper.  She overstayed after her employment was prematurely terminated.  She was arrested by the police on 19 March 2013.  She lodged a non-refoulement claim on 6 March 2014. 

3.  The applicant’s claim was based on threats from her husband and some debt collectors.  The details of the applicant’s claim have been summarised by the judge at [13] to [16] of the CALL-1 Form.

4.  By a Notice of Decision dated 2 September 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 1 August 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against her.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 October 2017, the Board dismissed the appeal on 1 December 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  The Board found that the applicant is not at risk from any of the proscribed harms upon her return.  The Board was also satisfied at [82] that state protection would be available for the applicant and at [86] that internal relocation would be viable.

The Judge’s decision

8.  The applicant filed a form 86 on 10 April 2018 which contained no ground for seeking relief.

9.  The applicant advanced the following grounds in her affirmation in support dated 10 April 2018, which have been summarized by the judge at [30] of the CALL-1 Form:

“30. In her affirmation, the Applicant said she did not understand the Board's decision due to her English deficiency. She repeated her problems and said her husband would still hunt her down. The Indonesian authorities would not intervene in her situation and it was impracticable for her Pakistani partner in Hong Kong to go with her to Indonesia to protect her.”

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [33] to [47] of the CALL-1 Form:

“33. The Board's decision was dated 1 December 2017. The Applicant admitted she received the Board's decision around that date. She only filed the current application four odd months later on 10 April 2018, so she was late for more than a month. The Applicant said she had been suffering from cancer since 2015. She was hospitalized at times but she could not tell when. She also said she had to take medication and had to go to the hospital for consultation once every 4 weeks.

Discussion

34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

35. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” 

Late application for leave for judicial review

36. Order 53 Rule 3(1) of the Rules of the High Court reads: –

(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

37. Order 53 Rules 4(1) and (2) of the Rules of the High Court read: –

(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

38. It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reason for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review. If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.

39. In the present case, the Board’s decision was issued on 1 December 2017. The Applicant only applied for leave for judicial review four odd months later on 10 April 2018. Excluding the 3-month grace period for filing, she was one odd months late.

40. The Applicant said she had suffered from cancer since 2015 and was hospitalized at times. However, she admitted she received the Board's decision around 1 December 2017. She failed to prove she was in hospital between 1 December 2017 and 10 April 2018, when she filed the current application. The Applicant failed to explain for her delay in applying for leave for judicial review.

41. There was no good reason from the Applicant to justify her delay, which was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. Discipline should be maintained in the area of public law. The current application for leave for judicial review involved no issue of general importance and the Applicant's argument had no merits at all.

42. The Applicant complained she did not understand the Board's decision due to her English deficiency.

43. In the current application, a friend helped the Applicant to prepare Form 86 and her affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated her language problem.

44. The Applicant repeated her problems and said her husband would still hunt her down. The Adjudicator had considered her complaints. He found the couple’s relationship ended in January 2012. The husband was estranged from the Applicant and her family. He had also agreed to the Applicant's suggestion of divorce.

45. The Applicant complained the Indonesian authorities would not intervene in her situation. However, she had never reported her case to the authorities. The Adjudicator was satisfied reasonable state protection and internal relocation were available to the Applicant. Thus, while it might be impracticable for the Applicant's Pakistani partner in Hong Kong to go with her to Indonesia to protect her, the Applicant would still be safe in her country.

46. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

47. The current application for leave for judicial review is late. The Applicant fails to show any good reason for her delay. There are no circumstances that oblige the court to consider her late application. I therefore dismiss her application for leave for judicial review.”

Application for extension of time for leave to appeal

11.  Pursuant to Order 53, rule 3(4), the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 16 May 2019, the applicant sought leave to appeal out of time.  Her application was dismissed by DHCJ Bruno Chan on 24 July 2019.

12.  By a summons dated 9 September 2019, the applicant renewed her application before this court.  In the affirmation of the same date, she deposed that:

(1) The judge did not take all relevant circumstances into account;

(2) She did not understand the judgment as it was not translated and read to her.  The judge did not explain why he did not entertain her request;

(3) The authorities had failed to consider the lack of access to medical treatment for breast cancer in Indonesia; and

(4) The applicant asked for a reconsideration of her case on the basis of non-discrimination.

13.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 2 October 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the Court.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

15.  We would first deal with the issue of delay.  The applicant contended that she did not understand the judgment and that she needed a “reasonable time frame to respond”.  We note that she was able to cogently present her case in the documents filed in the court below and this court.  She did not explain how the alleged language difficulty had a real impact on her ability to bring the intended application within time.  Nonetheless, as the delay was relatively short, we will consider the merits of the intended appeal.

16.  The applicant claimed that she needed more time to understand the judgment but she failed to supplement her case by a skeleton submission within the time limit.

17.  The applicant also complained that the judgment was not translated for her. However, the applicant did not explain how this had materially affected her ability to bring the intended application.  In fact, we note that when she applied for leave to appeal in the court below, she was able to advance various grounds of appeal directed towards the judge’s decision in detail and with precision.  This ground is wholly unarguable.

18.  The applicant claimed that the judge erred by not taking all relevant circumstances into account without specifying the circumstances that have been overlooked. This is thus not a viable ground of appeal.

19.  The applicant also claimed that the authorities did not consider the lack of medical treatment in Indonesia.  This is apparently not a ground she relied on before the Board.  In any event at [85] of the Board’s Decision, the Board observed that:

“She claimed that she has been in poor health and has received treatment for her breast cancer in the past few years; however, her evidence indicates that the cancer was benign and has been removed and that she only needs to have an occasional check-up, and the available evidence does not indicate that it is likely that her cancer will return or that she will not be in good health in the reasonably foreseeable future.”

20.  We would therefore also dismiss this ground.  Further, we do not consider that the applicant can establish a case that she has been discriminated in any way in the subject matter of this application.

21.  We do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 9 September 2019 is dismissed accordingly.

22.  We are also of the view that the application is totally without merit.  Pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.