RE ISROFAH

CAMP 156/2022, [2023] HKCA 1008

On Appeal From [2021] HKCFI 3865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 156 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2316 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Yuen JA (giving the Judgment of the Court):

1.  On 24 December 2021, DHCJ Bruno Chan (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim and dismissed her leave application (“the JR Decision”)  [2021] HKCFI 3865. Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance (“CFI”)  on 1 March 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ To on 10 May 2022.

3.  On 16 May 2022, the applicant filed her summons in CAMP 156/2022 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 16 May 2022, the applicant lodged her written submissions on 30 May 2022.

5.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Indonesia. She last arrived in Hong Kong on 19 September 2012 with permission to work as a foreign domestic helper.  Her employment was prematurely terminated on 17 October 2013, but she did not leave Hong Kong and overstayed.  She was arrested by police on 20 August 2015.  She was then referred to the Immigration Department for investigation.  She raised a non-refoulement claim alleging that if refouled, she would be harmed or even killed by her creditor and/or her husband over an outstanding debt which she owed the creditor after she borrowed money for her brother.  The factual background of this case was succinctly summarised by the Judge at [2] to [3] of the JR Decision.

7.  By a Notice of Decision dated 31 October 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  and attended an oral hearing on 5 July 2018.  By its decision dated 24 September 2018, the Board dismissed the appeal due to issues of credibility for reasons set out at [52] to [94].  Thea Board found that the applicant was unable to produce any documentary evidence to support her claim about the money lender (referred to as the “loan shark”)  notwithstanding her claim that she had received letters and a loan agreement from the loan shark in her written claim form.  Her evidence was found to be incredible. Regarding the applicant’s claim that she received severe beatings from her husband, the Board found it incredible that she did not report the matter to the police or seek any formal medical treatments.  Lastly, the applicant did not raise any claim for non-refoulement during the period of about 20 months between the termination of her employment and her arrest by police.  The Board considered that cast doubt whether she is a genuine asylum seeker.  For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 23 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions and in her supporting affirmation, she attached the Director’s decision without advancing any grounds for seeking relief.

The JR Decision

10.  An oral hearing was fixed but the applicant failed to attend the hearing without any explanation.  The Judge proceeded to dispose of the application on paper.  After due consideration of the Board’s decision, the Judge refused leave for judicial review for reasons set out in [8] - [12] of the JR Decision:

“8. On 23 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just attached copies of the decisions [sic] but without putting forth any proper ground for her intended challenge, nor did she attend the hearing of her application without any explanation. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

9. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

10. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 76 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her 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 findings of the Board.

11. The fact is that it has been established by both the Director and the Board in their respective decisions 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: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the CFI on 1 March 2022 for an extension of time to appeal.  That was dismissed by DHCJ To on 10 May 2022.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3) the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.  As for (1), the applicant was late by almost 2 months between the deadline for filing her appeal against the JR Decision and the summons filed in the CFI.  Her delay was substantial.

14.  As for (2), the reasons for the delay, the explanation given by the applicant in her supporting affirmations both in the CFI and in this Court was that she did not receive the JR Decision in time.  The CFI noted that she had used an address which was different from the one stated in Form 86, and on 3 March 2022, the CFI gave directions by letter requesting the applicant to file an affirmation or statement to further explain her delay.  However, she only provided a letter to the court on 19 April 2022 saying that she had no documents to submit and she would rely on her previous court documents.  There are no satisfactory reasons for the delay.  Insofar as she may have moved, she has not explained when she moved, or said whether she had informed the court of her new address, or explained how or when she became aware of the JR Decision. 

15.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not raise any proper ground of appeal against the JR Decision at any stage.  In her written submissions, she repeated the factual allegations of her case and complained that the Judge had failed to find errors in the Board’s decision in that (i)  it only allowed a 1-hour hearing which was insufficient for the applicant; (ii)  the Board had acted like her “opposition group” and (iii) the Board erred in finding that she only came to Hong Kong for financial reason and she had no problem in her home country.  Lastly, she urged the Court of Appeal to grant her application.

16.  The complaints raised in her submissions are without merit.  As for her first complaint, this was not raised in the Form 86 or her affirmation in support thereof, and she did not attend before the Judge at the hearing to make such an assertion.

17.  Regarding her second complaint, it is clear from the Board’s decision that it had allowed the applicant every opportunity to explain and clarify her case and after due consideration of all the evidence, the Board found that the applicant’s story was incredible and thus rejected her claim.  The Board is entitled to reach its findings and conclusion.  There is no evidence to suggest that the Board had acted in an oppressive and/or unfair and/or unreasonable manner in hearing or determining the applicant’s case.  Further, this was not raised in the Form 86 or her affirmation in support either, and she did not attend before the Judge at the hearing to make such an assertion.  

18.  Regarding her last complaint, the Board is the fact-finding tribunal, and we see no basis to intervene.

19.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified, we cannot find any flaws in his analysis and he was entitled to refuse leave. 

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 16 May 2022.