RE INTAN DWI NOPITASARI

CAMP 495/2022, [2024] HKCA 949

On Appeal From [2021] HKCFI 2794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 495 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 954 OF 2021)

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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 25 November 2022, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 6 September 2022 ([2022] HKCFI 2657) (“the EOT Decision”) refusing to grant him extension of time to appeal against an earlier order of the Deputy Judge dated 16 September 2021 ([2021] HKCFI 2794) (“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 9 June 2021 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 22 January 2021 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

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”).

4.  Subsequently, this court was notified by the Immigration Department on 13 September 2024 that the applicant had been removed voluntarily back to her home country.

BACKGROUND

5.  The applicant is a national of Indonesia.  She came to Hong Kong to work as a foreign domestic helper on 2 September 2014.  Her employment contract was terminated prematurely on 16 January 2015 and she had overstayed in Hong Kong since 31 January 2015.  On 13 April 2015, she was arrested by the police.  She then lodged a non-refoulement claim on 23 April 2015 and was released on recognisance on 24 June 2015.  Her claim was rejected by 23 May 2017 and her appeal against that decision was also dismissed by the Board on 2 March 2018.  Prior to the Board’s dismissal of her appeal, she was arrested again by the police on 17 November 2017.  She got pregnant with her boyfriend in Hong Kong and gave birth to a girl (“the Daughter”) in Hong Kong on 21 January 2018.  She then lodged a non-refoulement claim on behalf of her Daughter on 13 April 2020 and a subsequent claim for herself on 12 October 2020.  Their claims were made on the basis that, if refouled, the applicant and the Daughter would be harmed or killed by her creditors because she was unable to repay a loan, and also by Suprapto, her boyfriend in Indonesia, because she gave birth to the Daughter with another man.  The Daughter’s claim was also founded on the basis of discrimination against the Daughter by the local community due to the Daughter’s status of an illegitimate child.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [7] of the Leave Decision.

6.  By the Director’s Decision, the Director rejected the non‑refoulement claims of the applicant and the Daughter on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

7.  The applicant then appealed the Director’s Decision to the Board for herself and on behalf of the Daughter.  On 9 June 2021, the Board’s dismissed their appeal, and confirmed the Director’s Decision.  The Board’s reasons for its decision were summarised by the Deputy Judge at [11] of the Leave Decision:

“11.     In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence and evasiveness in her answers to questions raised of her claim that it doubted the credibility of her claim of fear of harm from her creditor or her former boyfriend, while there was no evidence of any such harm to her daughter or any discrimination from her local community other than her own speculations, and that in any event in the absence of any official involvement that state/police protection as well as support and assistances from government agencies and NGOs would be available to the Applicant and daughter upon their return to Indonesia as well as reasonable internal relocation for them to move to other area away from the Applicant’s home district without any risk of being located, and in the absence of any other minor-specific matter or basis which may be relevant to her daughter’s claim, it concluded that their claim for non‑refoulement protection failed on all applicable grounds.”

8.  On 7 July 2021, the applicant filed a Form 86 for herself only to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86.  In her supporting affirmation, she only stated that her life is not safe in her home country.

THE DEPUTY JUDGE’S DECISION

9.  On 16 September 2021, as the applicant did not request for an oral hearing, the Deputy Judge determined her application on paper and refused her application for leave to apply for judicial review.  His reasons were stated at [12] ‑ [16] of the Leave Decision:

“12. On 7 July 2021 the Applicant filed a Form 86 for herself only for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just stated that her life is not safe in Indonesia without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such 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 reasonably arguable basis for her intended challenge.

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. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate either by herself or with her daughter to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. 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.

16. 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 accordingly refuse her leave application.”

10.  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.

11.  On 5 May 2022, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was over seven month late with her intended appeal.

12.  On 6 September 2022, the Deputy Judge refused the applicant’s application.  The Deputy Judge considered a delay of over seven months as very substantial and inordinate, for which the applicant did not provide any good or valid reason.  The Deputy Judge held that in the absence of any error in the decision being clearly and properly identified by the applicant, there was no prospect of success in her intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation lodged on 25 November 2022 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In her summons, she craved for leave to advance a new sole ground of appeal without specifying any details.  In her supporting affirmation, she asserted that she was not aware of the 14‑day limit for filing her intended appeal and that she was unrepresented.  She claimed that she did not receive any decision made by the High Court and that the Leave Decision was unfairly reached without allowing her the opportunity to clarify her case and her country’s situation.  She also contended that owing to the COVID-19 pandemic and as she was in custody at the time, she was unable to file her intended appeal.

14.  Contrary to the directions of the Registrar of Civil Appeals dated 25 November 2022, the applicant failed to lodge any written submissions.

DISCUSSION

15.  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.

16.  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.

17.  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].

18.  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)]).

19.  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.

20.  In our view, the applicant’s delay of over seven months is very substantial and inordinate.  As noted by the Deputy Judge in the EOT Decision, the court record shows that the decision was sent on the same day to the applicant’s last reported address without being returned through undelivered post.  Further, ignorance of the legal procedure is not a valid reason for her substantial delay.  Accordingly, the applicant has failed to give any good reason to explain her delay.

21.  There is also no substance in the applicant’s complaints.  The applicant had ample opportunities to present her case and her country’s situation before the Deputy Judge.  As the applicant did not request for an oral hearing, and raised no ground for her intended challenge, it was open for the Deputy Judge to consider her application for leave to apply for judicial review on paper after considering the materials advanced by the applicant.  Accordingly, there is no basis for her complaint that the Leave Decision was reached unfairly.  Nor is there any legal basis for any contention that she was or is entitled to legal representation at either stage 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.

22.  In any event, the assertions made by the applicant are all vague, general and bare allegations unsupported by any particulars.  She failed to specify how the Deputy Judge had erred in the Leave Decision.  We see no basis to interfere with the Leave Decision.

23.  Accordingly, 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

24.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 25 November 2022 is dismissed.

25.  On 13 September 2024, the court was notified by the Director that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.