RE TITIN MAESYAROH

CACV 94 /2023, [2024] HKCA 923

On appeal from [2023] HKCFI 643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 94 OF 2023

(ON APPEAL FROM HCAL NO. 960 OF 2019)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 21 March 2023^[1] refusing to extend the time for her to apply for judicial review and dismissing her application for leave to judicially review the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.  The applicant has lodged a written submission to support her appeal.  On 27 March 2023, she consented to the disposal of her appeal on paper by the Court of Appeal. 

The applicant’s claim

3.  The applicant is an Indonesian national aged 46.  On 28 August 2015, she was permitted to enter Hong Kong and remain as a visitor for one month.  She overstayed and was arrested by the police on 24 November 2015.  In 2016, she raised a non-refoulement claim.  The details of her claim were set out in [7] of the Director’s decision and [10] of the Board’s decision. 

4.  In gist, the applicant claims that she fears of being harmed or killed by her ex-husband, who is an alcoholic, a gambler and had assaulted her in the past.  She also fears harm from loan sharks due to her ex-husband’s failure to repay debts due to them.  Both her ex-husband and his creditors had threatened to kill her.  After she divorced her husband, the applicant came to Hong Kong to work, but her employment was terminated in April 2015.  As she feared harm from her ex-husband and his creditors, the applicant travelled between Hong Kong and the Mainland, and finally overstayed.       

The Director’s and the Board’s decisions

5.  By a Notice of Decision dated 28 February 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 23 November 2018, during which the applicant gave evidence and answered questions from the Board.  By a decision given on 1 April 2019, the Board dismissed the appeal.  There was a typo in the Board’s decision in that the date of the decision was mist-stated to be 1 April 2018.    

7.  The Board accepted the applicant’s assertions that her ex-husband had borrowed money from loan sharks, and he as well as the loan sharks had forced her to make repayments.  The Board also accepted that the applicant retains a genuine, subjective fear of the loan sharks, even though they cease to threaten her after taking the family house in 2008.  The Board however found on the facts that any risk of harm from the loan sharks was a remote or speculative risk and not a real risk of harm. 

8.  As to the fear of harm by the ex-husband, the Board accepted that he had threatened and assaulted the applicant in the past, but considered the applicant had exaggerated her claims regarding him.  The Board also noted that he no longer contacted the applicant or made any attempt to locate her.  The Board found there was no real risk of harm from the ex-husband.  In conclusion, the Board did not accept that it was unsafe for the applicant to return to her home country or she would face any real risk of harm upon her return.  The Board concluded that the applicant failed to show she was entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

9.  The applicant filed a Form 86 and an affirmation on 9 April 2019 to seek leave to apply for judicial review against the decision of the Board.  She did not provide any grounds in support of the application.

10.  The Judge dealt with the leave application on paper.  By a Form CALL-1 dated 21 March 2023 (at [1]), he dismissed the application, after finding that the application was late and the intended judicial review had no realistic prospect of success for the reasons given in [13] to [19] as follows: 

“13. As mentioned in paragraph 1, the applicant’s application is seriously late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The deadline for her to file Form 86 is 1 July 2018. The delay is about 9 months. The delay is therefore serious and her application can be dismissed as she has not given any explanation for the delay. I shall, nevertheless, first consider the merit of the applicant’s case.

14. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16. 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.’

17. The Board found that there was no real risk of harm from Pidin if the applicant returned home. The grounds in paragraph 12 above do not assist her application. There is no valid reason to challenge the Board’s Decision.

18. 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.

19.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

The appeal

11.  By a notice of appeal dated 27 March 2023, the applicant appealed the Judge’s decision to this court.  The grounds of appeal in the notice of appeal complains that he Judge’s decision was removed from the facts and reality and there was no transparency in the decision.  In the written submission, the applicant stated that:

(1)  Many things in her case have been ignored which shows the decision was not transparent.

(2)  The situation in her country is different from what people think.  She cannot fight her enemy as the police and other law making authorities have political influence and can crush anyone who opposes them.  It is very difficult to get justice.   

(3)  She has problem in her country, and is really in danger there. She needs time to resolve the problems in her country.    

Our reasons for decision

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, 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 scrutinizing 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 Country of Origin Information 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.

13.  In our view, the Judge has erred in finding that the applicant’s application for leave to apply for judicial review was late.  It would appear that the Judge had overlooked the typo in the date of the Board’s decision. The date as stated, namely “1 April 2018”, is incorrect and it should have been “1 April 2019”.  That it is a mistake can be seen from the fact that the Director’s decision was made on 28 February 2018, the applicant’s notice of appeal to the Board was dated 9 March 2018, the hearing before the Board (as set out on page 1 of the Board’s decision) took place on 23 November 2018, and the letter from the Board to the applicant enclosing the Board’s decision was dated 1 April 2019.  The issue of time extension for the applicant’s application for judicial review therefore does not arise.  There is thus no basis for the Judge’s refusal to extend time for the applicant’s application.

14.  However, the Judge also dismissed the applicant’s application on the basis that the intended judicial review did not have merits.  In this regard, we note that the applicant did not provide any substantive grounds to support her application.  Given the legal principles set out in [12] above and the applicant’s failure to identify any errors in the Board’s decision or grounds for intervention by the court, her intended judicial review clearly lacks merits and does not enjoy any reasonable prospect of success.  On this basis, leave to apply for judicial review should not be given, and the applicant’s application falls to be dismissed.

15.  As to the matters raised in the notice of appeal and the written submissions, they bear no relevance to the findings and basis on which the Board made its decision.  They do not amount to viable grounds of appeal.   

16.  For the above reasons, the intended judicial review application has no merits, and the appeal against the refusal of leave to apply for judicial review is also devoid of merits.  Accordingly, we dismiss the appeal.

17.  On 13 September 2024, the court was notified by the Director that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.