RE INDAH MAYASARI

CAMP 272/2023, [2025] HKCA 400

On an intended appeal from [2022] HKCFI 2220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 272 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 1086/2019)

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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 21 July 2022 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 12 April 2019 (“the Board’s 2^nd Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 10 April 2017 rejecting the applicant’s non-refoulement claim (“the Director’s 2^nd Decision”)  based on the BOR 2 risk[1].

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong as a foreign domestic helper on 12 November 2011, but she did not depart upon the premature termination of employment, and was arrested by the police on 18 February 2014.  Thereafter, she lodged a non-refoulement claim by way of a written signification, which was received by the Immigration Department on 26 February 2014.

3.  The applicant’s claim was based on a fear of being harmed or killed by a loan shark due to a debt related dispute.  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].

4.  By a Notice of Decision dated 17 April 2015 (“the Director’s 1^st Decision), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the torture risk[3], persecution risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board against the Director’s 1^st Decision.  After a hearing on 28 December 2015, the Board dismissed the applicant’s appeal by a decision dated 21 December 2016 (“the Board’s 1^st Decision”).  In dismissing the appeal, the Board found material parts of the applicant’s evidence (on which her claim was based)  to be incredible, such as the alleged physical ill-treatment at the hands of the loan shark.

6.  By the Director’s 2^nd Decision, the Director also decided against the applicant’s claim based on the BOR 2 risk. The applicant appealed to the Board against the Director’s 2^nd Decision. After a hearing on 20 February 2019, the Board dismissed the applicant’s appeal by its 2^nd Decision.

The Judge’s decision

7.  The applicant filed a Form 86 on 18 April 2019, seeking to judicially review the Board’s 2^nd Decision (but not the Board’s 1^st Decision), without setting out any grounds for review.  In her supporting affirmation, the applicant merely exhibited a copy of the Board’s 2^nd Decision.

8.  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 to grant leave for the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [15] to [21] of the CALL-1 Form:

“15.  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).

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

17.  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.’

18.  There is no valid reason from the applicant to challenge the Board’s Second Decision.

19.  The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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

The present application for extension of time to appeal

9.  The applicant’s last known address at the time of the Judge’s decision was at 71 Woosung Street, Jordan (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 21 July 2022, and were not returned undelivered.  

10.  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 21 July 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 30 June 2023 seeking extension of time to appeal, in which her address was stated to be at Shanghai Street, Yau Ma Tei (“the New Address”).  In her Summons and supporting affirmation filed on the same date, she claimed that she did not receive the Judge’s decision in the post.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 1 August 2023[6].

13.  By a summons filed on 7 August 2023, the applicant renewed her application for an extension of time to appeal before this court.  In the summons and her supporting affirmation, the applicant merely contended that the court did not give her “a chance to appeal”.

14.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  She is therefore deemed to have abandoned her right to rely on the same. 

Discussion

15.  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.

16.  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 she has had notice of the Judge’s decision within the period which she was permitted to lodge an appeal.  It was also incumbent upon the applicant to notify the court of any changes in address, in this case to the New Address, and the consequences of failure to do so lie with her alone.

17.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has she explained when she had come to learn of the Judge’s decision.

18.  In any event, 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. 

19.  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.

20.  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.

21.  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 7 August 2023 is accordingly dismissed.