RE ELAWATI

CAMP 384/2022

[2023] HKCA 438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 384 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 679/2019)

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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 8 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 6 March 2019 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 30 May 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 on 12 February 2015 as a foreign domestic helper, but she overstayed after the termination of her employment contract and was arrested by the police on 15 July 2017.  On 17 July 2017, she raised a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by her stepfather, her fiancé and a creditor. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 30 May 2018, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 26 November 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing her appeal, the Board found that the material evidence of the applicant was incredible and that she would not face any form of harm upon return to her home country.

The Judge’s decision

6.  The applicant filed a Form 86 on 11 March 2019 seeking to judicially review the Board’s Decision without setting out any grounds.

7.  In her supporting affirmation, the applicant deposed that her life was still in danger should she be refouled.

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 judicial review.  The Judge gave his reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:

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

14.  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).

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 Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim. Her grounds in support of her application do not assist her application.

17.  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.

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

CONCLUSION

19.  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

9.  The applicant stated in her Form 86 that her address of service at the time was at Ki Lung Street, Sham Shui Po (“the Ki Lung Street 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 8 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 8 July 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 6 September 2022 seeking extension of time to appeal, in which her address was stated to be at Yee Kuk Street, Sham Shui Po (“the Yee Kuk Street Address”).  The applicant claimed that she did not receive the court’s decision in time, and that she disagreed with the Judge’s decision.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 23 September 2022[6].

13.  By a summons filed on 27 September 2022, the applicant renewed her application for an extension of time to appeal before this court, stating in her summons and her supporting affirmation that she did not receive a copy of the Judge’s decision in time.

14.  In her written submissions lodged on 11 October 2022, the applicant repeated her fears of returning to Indonesia, and alleged that the adjudicator of the Board “did many wrong”.  

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 at the time (which was the Ki Lung Street Address)  and was not returned undelivered.  The inference to be drawn is that she has received that letter from the court, and she has had knowledge of the Judge’s decision within the period she was permitted to lodge the intended appeal.

17.  Even if she had by then moved to the Yee Kuk Street Address, it was incumbent upon the applicant to update the court of her correspondence address promptly, and she must bear the consequences of her failure to do so.  Further, the applicant did not explain how she eventually came to know of the Judge’s Decision.

18.  In the circumstances, we consider that the applicant has failed to provide any reasonable explanation for the delay in lodging her intended appeal.  

19.  We have nonetheless proceeded 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.  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 27 September 2022 is accordingly dismissed.