RE TITIS GUTAMASARI

CACV 385/2022

[2023] HKCA 470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 385 OF 2022

(ON APPEAL FROM HCAL 128/2019)

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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 appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 16 September 2022 refusing to extend time for the applicant to apply for leave for judicial review and dismissing her leave application. 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 6 September 2018 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 7 December 2016 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 1 July 2002 as a foreign domestic helper, but she was arrested by the police on 8 February 2010 for the offence of theft.  Thereafter, she lodged a torture claim on 27 March 2010, which was dismissed and against which she did not appeal.  She lodged a non-refoulement claim on all applicable grounds other than torture on 11 March 2014.

3.  The applicant’s claim was based on a fear of being harmed by her husband due to matrimonial and monetary disputes.  The details of the applicant’s claim have been summarised by the Judge at [1] to [3] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 7 December 2016 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] (i.e. all applicable grounds other than the torture risk[5]).

5.  The applicant appealed to the Board.  After an oral hearing on 22 March 2018, the Board dismissed the appeal by the Board’s Decision, which covered all grounds for non-refoulement protection other than the torture risk.  The Board found that there is no evidence to suggest that the applicant had been harmed or ill-treated by her husband since their separation in 1998, and that there would not be any real risk of harm from him upon her return to Indonesia.

The Judge’s decision

6.  The applicant filed a Form 86 out of time on 14 January 2019, seeking to judicially review the Board’s Decision. 

7.  In her supporting affirmation, the applicant merely exhibited a copy of the Board’s decision, without setting out any grounds of review.  

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to extend time for the applicant’s application nor grant her leave to apply for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [8] to [18] of the CALL-1 Form:

“8.  On 14 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her written submissions dated 10 September 2021 she put forward the following grounds for her intended challenge:

(1)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirement;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3)  Procedural unfairness in that the Board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4)  Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which resulted in making groundless speculation that it would be safe for her to return to her home country; and

(6)  That the hearing bundle with the majority of documents in English was not provided to her with sufficient time to enable her to properly prepare for her appeal before the Board due to her limited skill in English and was unable to find a reasonably cheap interpreter to assist her for her appeal that the Board acted procedurally unfair to her in her appeal.  

9.  By then the Applicant was seriously out of time with her application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  

10.  As the last day of the three-month period for her to file her Form 86 fell on 6 December 2018, the Applicant was therefore more than 5 weeks late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

11.  In the Applicant’s case, a delay of more than 5 weeks must be considered as very substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her then reported address without being returned through undelivered post, and as she also failed to attend the hearing of her application without any explanation, I do not see any good reason for her serious delay.

12.  As for the merits, if any, of her intended application, those grounds put forth by her as listed above are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they would apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or how did the Adjudicator fail to take into account of relevant COI or what news of source were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge, and in the absence of any error of law or irrationality 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 merits in her intended application.

13.  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.

14.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her shortly before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal due to her inability to read English.

15.  Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her SCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her SCF was completed on her own instructions with legal assistance, and that at her oral hearing before the Board she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board, nor do I find this ground reasonably arguable for her intended challenge either.

16.  Furthermore, the fact is that it has been correctly 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, a decision also confirmed by eth Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 22 September 2022, the applicant stated that she was dissatisfied with the Judge’s decision “because its away from facts and reality which are related to [her] case”.

10.  The applicant lodged written submissions on 27 September 2022, in which she submitted, inter alia, that “all decision wasn’t transparent”, that “things” were ignored by the decision-makers and that it would be neither safe nor possible for her to return to Indonesia due to the presence of her enemies there.

11.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

12.  The applicant has in her Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the Judge that would justify this court in intervening.  The applicant has wholly failed to do so.

13.  In her application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  The application was therefore entirely without merit, and was rightly dismissed by the Judge.

14.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

15.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.