RE SUJIYEM

CAMP 48/2023, [2024] HKCA 273

On Appeal From [2022] HKCFI 3135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 48 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2455 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  On 7 February 2023, the applicant took out a summons to apply for “Renewal Application for time Extension for my Notice of Appeal against the Order of the High Court on 5/1/2023”.  Deputy High Court Judge KW Lung (“the Judge”) on 5 January 2023 ([2023] HKCFI 61) (“the EOT Decision”) refused to grant the applicant an extension of time to appeal against an earlier order of the Judge dated 1 November 2022 ([2022] HKCFI 3135) (“the Leave Decision”) refusing 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 31 October 2018, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 April 2017 rejecting the applicant’s non-refoulement claim on the basis of BOR2 risk[1].

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Indonesia.  She last entered Hong Kong as a foreign domestic helper on 30 July 2014.  Her permission to stay was later extended to 15 August 2015 or two weeks after the termination of her employment contract, whichever was the earlier.  On 10 August 2014, she was arrested by the police for taking up unapproved employment and soliciting for immoral purpose.  On 11 August 2014, her employment contract was prematurely terminated.  On 24 September 2014, she lodged a non‑refoulement claim on the basis that, if refouled, she would be harmed or killed by the loan shark or her husband.  Details of the applicant’s claim have been summarised by the Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 17 April 2015, the Director rejected the applicant’s non-refoulement claim on all applicable grounds: risk of torture[2], BOR3 risk[3], and persecution risk[4] (“the Director’s 1^st Decision”).

6.  The applicant appealed against the Director’s 1^st Decision to the Board.  On 3 March 2017, the Board dismissed the applicant’s appeal, and confirmed the Director’s 1^st Decision.  The Board’s reasons for its decision were summarised by the Judge at [10] ‑ [12] of the Leave Decision:

“10.  Insofar as the verbal threats from her husband was concerned, the Board found that, on the applicant’s evidence, the said threats were not serious and that her husband had no real intention to harm or even kill her [22]-[28]. The alleged ill‑treatments from her husband, if any, failed to attain a minimum level of severity [32]. As to the threats from the loan shark, the Board found that he was no serious in materializing the threats as he never attempted to locate the applicant [33]-[39]. In any event, state protection and internal relocation were both viable alternatives [40]-[48].

11.  In assessing the individual grounds, the Board further concluded that these were private disputes without state involvement [53]; and that she was never inflicted any physical harms and the alleged mental harms were insignificant [59]-[63].

12.  In light of the aforesaid findings, on 3 March 2017, the Board rejected the applicant’s claim and dismissed her appeal against the Director’s First Decision (the ‘Board’s First Decision’).”

7.  By a Notice of Further Decision dated 24 April 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR2 risk (“the Director’s 2^nd Decision”).

8.  The applicant then appealed against the Director’s 2^nd Decision to the Board.  On 31 October 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).  The Board’s reasons for its decision were summarised by the Judge at [14] of the Leave Decision:

“14. The Board considered the applicant’s evidence in relation to her BOR 2 risk. It found that her last contact with the loan shark was three years ago and her husband two years ago. This indicated that the loan shark and her husband no longer had any adverse interests in her [5]-[12]. Coupled with the findings in the Board’s First Decision, the Board, by the Board’s Second Decision, also rejected the applicant’s appeal against the Director’s Second Decision.”

9.  On 5 November 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Director’s 2^nd Decision.  Given that the Director’s 2^nd Decision was not amenable to judicial review, the applicant’s intended judicial review was considered by the Judge as challenging against the Board’s 2^nd Decision instead of the Director’s 2^nd Decision.

10.  No ground of review was given in the Form 86. In the applicant’s supporting affirmation of the same date, she merely stated that the Immigration Department disregarded the dangers and threats she would face if refouled.

THE JUDGE’S DECISION

11.  On 1 November 2022, as the applicant did not request an oral hearing, the Judge determined her application on paper and refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [17] ‑ [22] of the Leave Decision:

“17. 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).

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

19. 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.’

20. The grounds in paragraph 16 above are her personal opinions and bare assertions without any evidence in support. There is no valid ground to challenge the Board’s Second Decision.

21. The Court does not find any fault with the Board in reaching the Board’s Second Decision.

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

12.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.

13.  On 29 November 2022, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was 14 days late with her intended appeal.

14.  On 5 January 2023, the Judge refused the applicant’s application, holding that the applicant had not been able to raise any valid reason to show that she has a realistic prospect of success in her intended appeal.

THIS APPLICATION

15.  By a summons and a supporting affirmation taken out on 7 February 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In her supporting affirmation, she merely stated that she did not know English or the court procedures, as such she did not take out her appeal on time.

16.  Pursuant to the directions of the Registrar of Civil Appeals dated 7 February 2023, the applicant lodged her written submissions on 21 February 2023.  In those submissions, the applicant complained that she was not provided with legal and language assistance and that there had been procedural unfairness in the decisions reached.

DISCUSSION

17.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

18.  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.

19.  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].

20.  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)]).

21.  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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

22.  At the outset, the applicant’s delay of 14 days is not insubstantial.  Ignorance of court procedure is not a valid reason for such delay.

23.  There is also no merit in the applicant’s complaint in relation to her lack of legal representation or language assistance. Insofar as this complaint relates to her appeal to the Board, she did not raise this ground in her application for leave to apply for judicial review, and should not be permitted to raise this new ground for the first time in the Court of Appeal.  See: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Insofar as this complaint relates to her application for leave to apply for judicial review or the present appeal, there is no legal basis for any contention that she was or is entitled to legal representation at either stage of the proceedings.  See: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; and Re Lopchan Subash[2018] HKCA 37.

24.  Furthermore, all the court documents filed and lodged by the applicant are written in English.  In the premises, it is clear that either the applicant is herself conversant with the English language or she has access to language assistance of her own if she finds it necessary.  There is therefore nothing in the complaint in relation to her lack of language assistance.

25.  In any event, her intended appeal is devoid of merit.  The applicant’s complaints against the decisions of the Director and the Board are general allegations without particulars.  No error of law or procedural unfairness or irrationality in the decisions of the Director and Board is shown in the present case.

26.  The applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.

27.  There is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

28.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 7 February 2023 is dismissed.