RE SRI WAHYUNI

CAMP 512/2022, [2023] HKCA 1344

On Appeal from [2022] HKCFI 1067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 512 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 309 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 13 April 2022 ([2022] HKCFI 1067) which dismissed her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also lodged a written submission to support her application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) which rejected her non-refoulement claim.

5.  The applicant is a national of Indonesia aged 40. She last entered Hong Kong in July 2011 and was given permission to remain to work as a foreign domestic helper. After her contract was prematurely terminated in September 2012, she overstayed. On 20 March 2013, she was arrested by the Immigration Department. She later raised a non-refoulement claim based on her fear of being harmed or killed by a loan shark creditor due to an outstanding loan she incurred for her family and also her husband because she took out the loan despite his objection. The background and details of the applicant’s claim were set out in the decision of the Director at [6]. We will not repeat them.

6.  By a decision dated 28 February 2018, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant appealed the Director’s decision to the Board. The Board heard the appeal on 20 October 2018, during which the applicant elected to give evidence and answered questions put by the Board. By its decision dated 17 January 2019, the Board dismissed the appeal. The Board noted the applicant stated at the hearing that she no longer feared harm from the loan shark as her husband had repaid a substantial part of it, but out of completeness it also took into consideration this part of the claim. For the reasons set out in [40] to [46] of the decision, the Board did not find the applicant and her evidence credible. The Board found the evidence did not indicate the applicant’s husband had inflicted serious or ongoing domestic violence on her, or that he has the means or motivation to pursue the applicant upon her return to Indonesia in relation to a matter which arose so long ago. The Board also found the claim in relation to the loan shark unlikely to be true. The Board further found state protection was reasonably available, which would negate or lower any risk she might face. The Board concluded that the applicant failed to establish her entitlement to non-refoulement protection under any of the applicable grounds.

8.  On 1 February 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. She did not provide any grounds for relief in either of the document.

9.  The Judge dealt with the application on the papers. By a Form CALL-1 dated 13 April 2022, the Judge refused the application for the reasons he gave at [9] and [12] as follows:

“9. On 1 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation to which she just attached a copy of the decision but without putting forward 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.

10. 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.

11. In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim either from her creditor or her husband 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 the 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.

12. 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.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.

11.  By a summons filed on 10 May 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge heard the application at a hearing held on 21 September 2022, and by his decision handed down on 6 October 2022 ([2022] HKCFI 2954) refused the application.

12.  On 5 December 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.  The applicant was 13 days late when she made the application for extension of time. This is not an insignificant delay. In the summons filed in the court below, she explained she did not receive the court documents because she had changed her address but did not inform the court about it. We agree with the Judge that it was the applicant’s failure to report her change of address to the court that resulted in the court documents not reaching her in a timely manner. In that regard, as this Court has repeatedly held, it is a litigant’s duty to inform the court of changes in address for service or receiving communications from the court: see, for example, Re Hasmi Rizwan Imran [2018] HKCA 439 at [15].

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. Relevantly, 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. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  In the present case, the applicant did not provide any grounds for her application or the intended appeal in either the summons or the supporting affirmation. She was further mistaken in stating in the summons that the Judge refused her application to extend time without an oral hearing.

17.  In the written submission, the applicant asserted that the same level of risk still exists. She also quoted extensively from the judgments dealing with the high standards of fairness and Wednesbury unreasonableness, and argued that the delay had nothing to do with her or her legal representative as time was needed to process the legal aid application. It was also asserted that the application for judicial review involved question of great general and public importance and legal issues that are complex and have not been argued in full, and nine grounds of judicial review were set out.

18.  For the reasons set out below, we are of the view that this renewed application has no merits:

(1)  The suggestion that the delay was due to legal aid application is clearly misplaced as no legal aid application had been made by the applicant, and the delay was admittedly due to the applicant’s failure to inform the court of her change of address (see [14] above).

(2)  Despite the extensive references to authorities, the written submission has not explained how the legal propositions relate to the applicant’s case.

(3)  Thea arguments and the nine grounds of judicial review put forward in the written submission were new assertions that were not raised in the application before the Judge. It is well established that it is not permissible for a litigant to raise new, and especially fact-sensitive, grounds on appeal.

(4)  In any event, what was stated in the written submission were broad, general assertions unsupported by particulars or evidence.

19.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success.

20.  As the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 5 December 2022.