RINI SARTINI v. THE ADJUDICATOR OF THE NON REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

CAMP 77/2021

[2021] HKCA 1510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 77 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 991 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the judgment of the Court):

INTRODUCTION

1.  By summons dated 9 March 2021, the Applicant applied to this Court for leave to appeal against the order dated 5 February 2021 of Deputy High Court Judge Bruno Chan (“Deputy Judge”) refusing to grant to the Applicant an extension of time (“EOT Decision”) to appeal against the Deputy Judge’s earlier order dated 22 November 2019 refusing to grant leave to apply for judicial review (“Leave Decision”). The intended judicial review was directed at the decision dated 12 April 2018 of the Torture Claims Appeal Board (“Board”) dismissing the Applicant’s appeal against the decisions dated 11 August 2016 and 31 May 2017 of the Director of Immigration (“Director”) rejecting her claim for non-refoulement protection.

2.  Having considered the papers, we are of the view that it is appropriate to determine the summons dated 9 March 2021 without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.  The Applicant is a national of Indonesia.  She entered Hong Kong on 22 May 2011 with permission to work as a foreign domestic helper until the end of her contract on 26 February 2013 or within 2 weeks of its early termination.  Her contract was terminated early on 2 September 2012 but she overstayed in Hong Kong.  She was arrested on 1 November 2012 and was referred to the Immigration Department.  She subsequently raised a claim for non-refoulement protection on the basis that, if she were to return to Indonesia, she would be harmed or killed by her husband over a monetary dispute.  The factual details of the Applicants’ claim were summarized by the Deputy Judge at [2] to [5] of the Leave Decision ([2019] HKCFI 2421).

4.  By a Notice of Decision dated 11 August 2016 and a Notice of Further Decision dated 31 May 2017, the Director rejected the Applicant’s claim.  The Director’s decisions covered torture risk^[1], BOR 2 risk[2], BOR 3 risk^[3], and persecution risk^[4]. Taking into account all relevant circumstances, the Director assessed the risk of harm from the Applicant’s husband as low.  The Director also considered that the dispute was a private domestic dispute without any official involvement, and that state protection would be available to the Applicant.  On the basis of Country of Origin Information (“COI”), the Director further considered that internal relocation was viable.

5.  The Applicant appealed the Director’s decisions to the Board.  She did not attend a scheduled hearing before the Board on 23 February 2018 and later failed to respond to the Board’s request to explain her absence.  The Board dismissed her appeal on 12 April 2018.  The Board found inconsistencies in, and did not accept, the Applicant’s claim of fear of harm from her husband.  The Board also found that state protection was available to her.

THE LEAVE DECISION

6.  On 1 June 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of both the Director’s and the Board’s decisions.  Her grounds of review were set out by the Deputy Judge in the Leave Decision, at [11], as follows:-

“(1) that the Director failed to appreciate or give proper weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claim;

(2) that the Director failed to take into account or to give sufficient weight to the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies for which the state would be rendered liable to the Applicant for failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Director failed to consider or give sufficient weight to the relevant COI that support the Applicant’s case that the police in her country would not be able to protect and instead ruled otherwise;

(4) that the Director relied on relevant COI which suited his pre-conceived conclusion thereby showing unfair attitude which would render his decision void;

(5) that the Director failed to consider the fact that the corruption and incompetency of the administration in the Applicant’s home country which supported the Applicant’s case;

(6) that the Director failed to attain high standards of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law;

(7) that the adjudicator failed to make sufficient enquiry before finalizing the decision;and

(8) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to support her non-refoulement claim as well as her appeal.”

7.  By the Leave Decision given on 22 November 2019, the Deputy Judge refused to grant leave to apply for judicial review for the following reasons:-

“12. These are however all just broad and vague assertions of the Applicant containing various key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or [the Board] had erred in their decision, or what relevancy was the presence of state acquiescence to her case, or in what way did the Director or [the Board] fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to make proper or sufficient inquiry or to apply high standards of fairness in their consideration of her claim, or in what way did the adjudicator fail to give her sufficient opportunity to provide relevant evidence to support her claim.

13. None of these assertions were elaborated or presented with any particulars or specifics … and there is nothing to suggest that she had ever been denied any opportunity to present her evidence before the Board … and that she never raised any such issue in her appeal nor made any request for time to provide any further evidence in support her claim. Even now in her present application or at the hearing before me, she did not provide any further evidence for her claim, nor did she ask for further time to enable her to do so. As such there is simply no basis or merits in these complaints of the Applicant, nor do I find any of them reasonably arguable for her intended challenge.

15. … in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by [the] Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong …”

THE EOT DECISION

8.  On 11 August 2020, the Applicant applied for extension of time to appeal against the Leave Decision, as she was out of time by more than 8 months.  The Applicant did not appear at the hearing before the Deputy Judge.

9.  In the EOT Decision, the Deputy Judge held that a delay of more than 8 months was very substantial and excessive.  He did not accept as valid reason the Applicant’s explanation that it was difficult for her to obtain legal assistance as she was detained at the Castle Peak Bay Immigration Centre.  The Deputy Judge went on to consider the merits of the intended appeal, holding that ([2021] HKCFI 188, at [6]):-

“More importantly, nor did [the Applicant] put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in her summons or affirmation, nor did she appear at the hearing of her summons. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in her intended appeal.”

THE PRESENT APPLICATION

10.  By summons dated 9 March 2021, the Applicant sought leave from this Court to appeal against the EOT Decision.  No ground of appeal was indicated in the summons.  In her affirmation also of 9 March 2021, the Applicant stated that she was unrepresented and did not have access to any legal advice.  She also stated that it was her understanding that there was a good ground of appeal, without elaborating on any specific particulars.

11.  In her written submissions dated 17 May 2021, the Applicant referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  She submitted that the Board acted in a procedurally unfair manner without properly assessing her credibility.  She referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  Lastly, she made reference to the matters that the Board should consider where there has been late filing of a notice of appeal, without explaining the relevance of such reference.

DISCUSSION

12.  As the Court of Appeal held in Farrukh Zaib [2020] HKCA 408 at [21], although it is technically possible to appeal against a lower court’s refusal of an application for extension of time to appeal, it is more appropriate to renew the application before this Court.  The Applicant’s summons of 9 March 2021 is therefore treated as a renewed application to this Court for extension of time to appeal against the Leave Decision.

13.  It was further held in Farrukh Zaib [2020] HKCA 408 at [22] that, 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 prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.  In the Applicant’s case, the Deputy Judge was entitled to hold that a delay of more than 8 months was excessive and to reject her explanation for the delay.

15.  On the merits of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong (Farrukh Zaib [2020] HKCA 408 at [23] to [24]).  General and bare assertions without any specific particulars are not proper grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]; Re Mizan Sikder [2019] HKCA 20 at [17]).

16.  Turning to the Applicant’s affirmation of 9 March 2021, there is no absolute right to free legal representation at all stages of non-refoulement claim proceedings (Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 and FB v Director of Immigration HCAL 51/2007).  Being legally unrepresented or lacking access to legal advice, without more, is not a valid ground of appeal.  As for her understanding that there was a good ground of appeal, without any specific particulars, it is not a valid ground of appeal either.

17.  No valid ground of appeal can be found in the general propositions in the Applicant’s written submissions of 17 May 2021 regarding high standards of fairness, reasonableness of a decision, her bare assertion that the Board acted in a procedurally unfair manner without properly assessing her credibility, or her reference to late filing of notice of appeal.

18.  As the Applicant has failed to identify any proper grounds of appeal, there is no merit and no prospect of success in her intended appeal against the Leave Decision.  The application for extension of time to appeal is refused and the Applicant’s summons dated 9 March 2021 is dismissed.