RE DIYAH AYU ASTUTI

CAMP 196/2023, [2025] HKCA 471

On an intended appeal from [2023] HKCFI 684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 196 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 742/2019)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”)  dated 22 May 2023 refusing to extend time for the applicant to appeal against his decision dated 17 March 2023 refusing to grant leave to the applicant to apply 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 (“the Board”)  dated 22 February 2019 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 25 July 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong as a foreign domestic helper on 27 March 2005, but she overstayed after the early termination of her employment, and she was arrested by the police on 27 January 2011.  Thereafter, she lodged a torture claim under Part VIIC of the Immigration Ordinance, Cap.115, which was rejected by the Director on 1 March 2013.  Thereafter, her appeal against that decision was dismissed by the Board on 21 May 2013.

3.  The applicant also made a non-refoulement claim by way of a written signification dated 11 March 2013, which was assessed on all applicable grounds other than the torture risk[1].

4.  The applicant’s claim was based on a fear of being harmed or killed by her fiancé Kumar, as she refused to join a terrorist organisation on his demand.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of his decision (“the CALL-1 Form”)[2].

5.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

6.  The applicant appealed to the Board.  The Board determined the appeal on paper and dismissed the appeal by its Decision.  In so doing, the Board found, inter alia, that the risk of harm arising from the applicant’s fiancé was low, given that the last contact she has had with him was in 1999.  Moreover, the applicant could have, but did not, seek assistance from local authorities or the Indonesian police, which was readily available to her.  In any event, the risk of harm, if any, would be greatly reduced should she internally relocate to another area, such as Jakarta.

The Judge’s decision

7.  The applicant filed a Form 86 on 18 March 2019, seeking to judicially review the Board’s Decision.

8.  In her supporting affirmation, the applicant set out her grounds, as summarised by the Judge at [12] of the CALL-1 Form, as follows:

“(1)  She did not have legal representation for her appeal before the Board.

(2)  She did not have interpretation service for her appeal and the Board’s Decision was not interpreted to her.

(3)  It is procedurally unfair for the Board to determine her case and challenge her credibility without a hearing for her.”

9.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused leave for the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [13] to [22] of the CALL-1 Form:

“13.  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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she understood the Board’s Decision. But she submitted that she wanted to stay in Hong Kong instead of going back to Indonesia.

15.  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.’

16.  The grounds as set out in paragraph 12 above do not assist her application. According to the Board’s Decision, the Board did not challenge the applicant’s credibility. It accepted her evidence as stated in her statement. On such evidence, the Board found that there is no real risk for her to return to Indonesia. Further, she will have state protection and the option of internal relocation. It is within the Board’s power under the law that a hearing can be dispensed with if the Board considers it is just to do so. See section 12 of Schedule 1A of the Ordinance[1]. The applicant has no valid ground to challenge this decision.

17.  On the issue of no legal representation for her appeal, The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

‘22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’

18.  On the issue of lack of interpretation service, The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

‘16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.’

19.  There is no valid ground to challenge the Board’s Decision.

20.  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.

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

CONCLUSION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

The present application for extension of time to appeal

10.  The applicant’s last known address at the time of the Judge’s decision was at No.51-53 On Ning Road (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Address on 17 March 2023, which were not returned undelivered.

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 17 March 2023.

12.  The applicant thereafter took out a summons in the Court of First Instance on 25 April 2023 seeking extension of time to appeal, in which her address was also stated to be at the Address.  In the summons and in her supporting affirmation filed on the same date, she claimed that she did not receive “any letter from Court” and thus she was unable to lodge an appeal within time.

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 22 May 2023[6].

14.  By a summons filed on 23 May 2023, the applicant renewed her application for an extension of time to appeal before this court. In the summons, the applicant stated that she wished to appeal against the decision given by the Judge on 22 May 2023, being the Judge’s refusal to grant an extension of time for her to appeal against his decision dated 17 March 2023.  Although in the summons the applicant purported to seek leave to appeal against the decision of the Judge dated 22 May 2023, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 17 March 2023, by which leave for judicial review was refused.

15.  In the summons and her supporting affirmation, the applicant contended that she was “unrepresented and did not have access to any legal advice”.

16.  In the written submissions lodged on 5 June 2023, the applicant merely referred to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

Discussion

17.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

18.  As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Address, but was not returned undelivered.  The inference to be drawn is that the applicant has had notice and knowledge of the Judge’s orders and the contents of the CALL-1 Form in the period within which she was permitted to lodge an appeal.

19.  We nonetheless proceed to consider the merits of the intended appeal.

20.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

23.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

24.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in her written submissions had not been applied in the consideration of her leave application by the Judge and in the processing of her non-refoulement claim.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 23 May 2023 is accordingly dismissed.