RE ANDRIANI WIBI ASTUTIK

CACV 444/2020

[2021] HKCA 306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 444 OF 2020

(ON APPEAL FROM HCAL NO 756 of 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 24 August 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to extend the time for the applicant to apply for judicial review. The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) given on 18 September 2017 refusing to re-open her appeal/petition, which was withdrawn by herself, against the decision of the Director of Immigration (“the Director”) dated 2 November 2016 rejecting her non-refoulement claim.

2.  The applicant has consented to her appeal being heard by two judges of the Court of Appeal.

3.  The applicant failed to comply with the direction made by this Court on 2 January 2021 requiring her to lodge skeleton submissions by 8 February 2021, despite being warned that the hearing date would be vacated and the appeal would be dealt with on paper without an oral hearing in the event of non-compliance.

4.  The hearing date on 8 March 2021 was therefore vacated and we have dealt with the appeal on the basis of the materials already filed with the Court. 

Background of the applicant

5.  The applicant is a national of Indonesia.  In about December 2013, she entered Hong Kong to work as a domestic helper.  Upon termination of her employment contract, she overstayed in Hong Kong and was subsequently arrested by the police for theft.  On 22 August 2014, she was convicted for theft and fraud and was sentenced to imprisonment for three years and six months in total. 

6.  The applicant first lodged a written representation to the Immigration Department on 27 May 2014.  After she was released from prison on 25 July 2016, she was transferred to the Immigration Department for removal formalities.  She was released on recognizance on 22 August 2016.  She filed a non-refoulement claim form on 9 September 2016. 

7.  The applicant’s claim is based on her fear of being tortured or killed by her creditor if she was to be returned to Indonesia.  Her case was set out in detail in [9] of the Director’s decision dated 2 November 2016 and summarised by the Judge in [1-4] of the Form CALL-1[1].

8.  The applicant’s case, in brief, is as follows.  The applicant was born and raised in Village Karangdoro, Tegalsari Sub-district, Banyuwangi Regency, East Java Province, Indonesia.  After working as a salesperson, a waitress, and then owning her own online business, the applicant borrowed money from Acong, a local gangster to start a restaurant business.  The business did not go well.  The applicant borrowed a second loan from Acong to invest more into her restaurant business and hoped to turn it into a profitable business. 

9.  The applicant was not able to make repayment to Acong.  In about late December 2011, Acong took the applicant away from her home and unlawfully imprisoned her.  During such period she was physically and sexually abused on multiple occasions by Acong.  After the applicant agreed to repay her debt within 6 months, she was released after 4 days.  After that, the applicant fled to Samarinda, Indonesia in about October 2012 but she was somehow found by Acong.  She was released when she agreed to marry Acong and to work in his brothel.  In about 2013, the applicant departed Indonesia to work in Taiwan and then in Hong Kong.

10.  By his decision dated 2 November 2016, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds.[6]

11.  On 15 November 2016, the Applicant lodged an appeal to the Board against the Director’s decision.  On 14 September 2017, the applicant wrote to the Board that she wished to withdraw the appeal because her problems in her country have been resolved.  On 18 September 2017, the Board confirmed receipt of the applicant’s withdrawal and dismissed her appeal/petition accordingly. 

Application for leave to start judicial review

12.  The three-month period for the applicant to file her Form 86 expired on 18 December 2017.  On 2 May 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s dismissal of her appeal/petition.  By then there was a delay of about 4 ½ months.  As noted by the Judge in [10] of the Form Call-1, the applicant did not state any ground for seeking relief in her Form 86 or in her supporting affirmation.

13.  The reasons for the applicant’s delay in filing her Form 86 were summarized by the Judge in [13] of the Form CALL-1 as follows:

“13. In the Applicant’s case, a delay of 4 ½ months must be considered as very substantial and excessive, for which she explained in her supporting affirmation that after she had withdrawn her appeal and was waiting for repatriation to Indonesia, she was informed by her family in early March 2018 that her problem had not been solved as her creditor was still looking to harm her over her loan, and in her written submissions dated 21 May 2020, she further elaborated:

‘Delay in bringing this application

2.  The reason for my delay in bringing this application is explained in my affirmation dated 2 May 2018 [T2/2-4]. Basically, after I voluntarily withdrew my appeal to the Appeal Board on 14 September 2017, the Appeal Board dismissed my appeal on 18 September 2017.  However, in early-March 2018, while awaiting to be repatriated to my home country, I received further threats that my life would be in danger in I returned to Indonesia.  I therefore took out this judicial review application.’ ”

14.  As to the grounds for seeking relief, the applicant stated the following in her submissions:

“3. Due to my unfortunate circumstances, the Appeal Board did not consider the merits of my appeal. I feel that this is unfair and that my case should be reconsidered by the Appeal Board.”

The Judge’s Decision

15.  After hearing the applicant on 24 August 2020, the Judge refused leave for the reasons set out in [15] – [23] of the Form CALL-1:

“15. The issue before me is however not whether it is unfair that the Applicant’s appeal had not been considered by the Board, but rather having acceded to her application to withdraw her appeal, whether the appeal procedure came to an end and that the Board became functus officio.

16. This issue was in fact raised in the case of HT (Hussain Tasawar) v Betty Kwan [2017] 2 HKLRD 567, in which the applicant, having lodged his appeal to the Board against the Director’s decision in rejecting his non-refoulement claim, one month later requested the Board to “cancel” his appeal, to which the Board informed him that it had treated his appeal as one that had been disposed of and finally determined and vacated the scheduled oral hearing, but later the applicant requested to re-open his appeal, and when the Board refused upon finding that he had acted with the knowledge and intention to bring his appeal to an end when he applied to “cancel” his appeal, the applicant then sought leave to judicial review the Board’s decision.

17. In his judgment dated 17 March 2017, Deputy High Court Judge Yee held that the Board had no jurisdiction to re-open a validly withdrawn appeal where the applicant had acted with the knowledge and intention to bring his appeal to an end when he applied for his appeal to be “cancelled”.

18. This judgment was approved by the Court of Appeal (Lam VP and Barma JA) in Re Ali Usman [2018] HKCA 955 which held that the functus principle applies to the Board in relation to validly withdrawn claims, and in Re Das Purnima Rani [2019] HKCA 669 the Court of Appeal (Yuen JA and Lisa Wong J) elaborated further as follows:

‘41. Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO (2)[12] if he can fulfil the requirements in sub-ss (a) and (b) thereunder.

43. On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the claimant’s application. Quite apart from the nullifying effect of an invalid withdrawal/abandonment, this conclusion also appears to us to follow from applying the high standard of fairness required in handling non-refoulement claims.’

19. Applying these principles, and having read the Applicant’s letter of 13 September 2017 of her application to “cancel” her appeal because she wanted to go home and that it was safe for her to do so, the Board was in my judgment entitled to find that she made her application freely, and that more significantly she understood, or would have understood, the consequences of the withdrawal, which was what the Board had stated clearly in the concluding paragraph of its letter of 18 September 2017 as follows:

‘Please note that your Appeal/Petition have now been disposed of and finally determined by the Board. No further action will be taken by the Board in respect of your Appeal/Petition.’

20. Had she not properly understood such consequences of her withdrawal, she should and would have raised them with the Board upon receipt of its letter, but she never did, and that her written submissions now before me in which she confirmed that she “voluntarily withdrew” her appeal to the Board show that she did make a deliberate and informed decision in September 2017 to withdraw her appeal.

21. Furthermore, the Applicant never disclosed in her application for withdrawal of her appeal what information that she had when she stated that it was safe for her to return home in Indonesia, nor has she since done so, and hence her subsequent change of mind could not, in my view, invalidate her earlier withdrawal of her appeal before the Board.

22. It is also noted that in her letter of 13 September 2017 to withdraw her appeal, the Applicant indicated that she wanted to go back to Indonesia to Bali which is clearly not her home district in Indonesia, nor more significantly is it where her claimed risk of harm was as found by the Director, and given his finding that such risk would be negated by reasonable internal relocation within Indonesia being available to the Applicant, which thus further support the Board’s view that she made her application to withdraw her appeal freely with full understanding of the consequences of the withdrawal.

23.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I refuse to extend time for her leave application which is accordingly dismissed.”

Appeal to Court of Appeal

16.  By a Notice of Appeal filed on 8 September 2020, the applicant appealed against the refusal of leave for judicial review on the following grounds:

(1)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case, which led to an unfair outcome of rejecting her claim;

(2)  the Director, the Board and the Judge failed to take such argument into account, or the Director failed to give sufficient weight to such argument before making his decision;

(3)  the Board failed to make sufficient enquiry before finalizing its determination;

(4)  the Board failed to give the applicant sufficient opportunity to arrange relevant evidence for her claim/appeal; and

(5)  this was a clear case of unfair attitude on the part of the Director.

Discussion

17.  When the applicant filed her Form 86, she was out of time by more than four months.  As the Judge rightly pointed out, the delay was very substantial and excessive. The applicant did not identify any ground for seeking relief in her application for leave to apply for judicial review. The grounds she put forward in her written submission were not viable grounds for granting relief. The Judge had nevertheless gone on to examine the circumstances leading to the Board’s disposal of the applicant’s appeal/petitions and found that the applicant was fully aware of the consequences of the withdrawal of her appeal/petition which was made voluntarily.  The Judge concluded that the intended judicial review application had no prospect of success.  He therefore refused to extend time and dismissed the application. 

18.  The Court, in considering whether to extend time for making an application for leave to apply for judicial review, will have regard to: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success of the intended judicial review; and (4) the prejudice to the putative respondent if extension of time is granted. 

19.  We agree with the Judge that the delay in question, being more than four months, is substantial and excessive.  It cannot be disputed that the applicant’s delay was inexcusable. 

20.  In the present case, the Judge has correctly decided that, by operation of the functus principle, the Board has no power to re-open an appeal/petition which has been disposed of.  The fact remains that the applicant, on her own initiative, applied to the Board to withdraw her appeal/petition in Hong Kong.  The Board accepted the applicant’s withdrawal and therefore the appeal/petition has come to an end at the issuance of the Board’s confirmation letter of the withdrawal dated 18 September 2017.  The Judge also noted that the applicant could not have made a mistake in such withdrawal because she has had ample opportunity to clarify with the Board which she never did. 

21.  In the circumstances, the Judge did not err in refusing to extend the time for applying for judicial review. We note further that the applicant has not pointed to any error in the Judge’s reasons for refusing to extend time in the applicant’s notice of appeal.

22.  For the reasons given above, we are of the view that the appeal against the Judge’s order dated 24 August 2020 has no prospect of success.  The appeal is accordingly dismissed.