RE SITI ENDANG KOMASIH

CACV 136/2023, [2024] HKCA 393

On Appeal From [2023] HKCFI 1011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 136 OF 2023

(ON APPEAL FROM HCAL NO. 1012 OF 2022)

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court) :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 19 April 2023 by which he refused to grant leave to the applicant to apply for judicial review.  The applicant consented to her appeal being disposed of on paper in a written confirmation filed on 3 May 2023.

2)  Factual background

2.  The applicant is a national of Indonesia.  She arrived in Hong Kong in December 2017 and was permitted to remain as a domestic helper.  In December 2021, the applicant was arrested for theft and her employment contract was prematurely terminated.  She raised a non-refoulement claim on 17 January 2022[1].

3.  The basis of the applicant’s claim is that she would be harmed or killed by her husband Awal Ikhsani[2] who constantly demanded money from her.

4.  The background facts have been summarized in the decision of the Judge at [2] to [4].

3)  The Director’s Decisions

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 26 April 2022.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  No hearing was held as it was a matter of the Board determining a late filing of an appeal to the Board pursuant to section 37ZT of the newly amended Immigration Ordinance (Cap. 115).  The Board dismissed the applicant’s appeal on 30 August 2022 (‘the Board’s Decision’).

7.  The Board’s findings are summarized in the Judge’s decision at [9] to [10].  In summary, the Board found that the applicant’s first attempt (11 May 2022) to file a notice of appeal to the Board was made within time but it was not signed and it was not in the specified form as required[3]. The Board wrote to the applicant enclosing instructions on what needed to be done, but it was sent to Mau Tau Kok Detention Centre which was the applicant’s last known address.  In fact, the applicant was not there and was at Castle Peak Bay Immigration Centre (‘Castle Peak’).  The Board then forwarded a copy of its earlier letter to Castle Peak.  The applicant then sent a second notice of appeal (21 June 2022), but it did not include any reasons for the late filing of her notice of appeal, and it did not comply with section 5 of the form.  The Board accordingly reminded the applicant again of the relevant defects.  It was not until the third notice of appeal (7 July 2022) being sent by the applicant that the required formalities were by and large met.  While the Board accepted that the applicant’s first attempt to file a notice of appeal could be forgiven, the Board did not accept that the applicant could still be given any indulgence on her second attempt in filing a notice of appeal.  This was because clearly, the applicant on her second attempt had all the instructions that were needed to file her notice of appeal properly but she still failed to do so.  It was not until her third attempt that the notice of appeal was filed properly.  The Board was not persuaded that given these circumstances, it can be said that the applicant had exercised all due diligence or that the applicant had any circumstances beyond her control[4] which justified the Board’s exercise of discretion.

8.  Prior to August 2021 before the amendment of the Immigration Ordinance (Cap. 115)[5], the Board was required, despite the above procedural irregularities, to consider the merits of the applicant’s case before refusing the filing of the notice of appeal.  But post amendment of the Immigration Ordinance (Cap. 115), such a requirement was no longer necessary.  The Board now may only take into account the statement of reasons as stated in the application for late filing and any accompanying documentary evidence in reliance.  The Board ruled that as a result, based on the documentary evidence available, the late filing of notice of appeal was not allowed.  In any event, the Board held that even if it were to consider the merits, the applicant had not put forward any material which would result in a finding that is to be different from the Director’s Decision in relation to risk of harm, state protection or internal relocation.  Late filing will also not be allowed on this end. 

5)  Decision of the Judge

9.  The applicant filed her Form 86 and affirmation but no grounds for seeking relief were provided.  Nor was she able to do so before the Judge. 

10.  The Judge held that in the absence of any error of law or procedural unfairness, there is no reasonably arguable basis for the intended challenge.  The Judge also held that even though the Board was not required to analyse the merits of the applicant’s case under Immigration Ordinance (Cap. 115), the Board had done so and found that the applicant had provided no evidence that would be able to overturn the Director’s Decision.  There is thus no reasonably arguable basis to challenge the Board’s Decision[6].

6)  Grounds of appeal and request for dismissal of appeal

11.  The applicant in the notice of appeal stated :

‘ The High Court did not consider any reson for my leave. Court only read adjudicator point. He can grant my leave as a woman who has no safety of her life.’

12.  The grounds are broad and vague and without particulars as to how the Judge was wrong.  The complaints must be considered against the fact that the Board has found the applicant did not comply with the requirements as stipulated in Immigration Ordinance (Cap. 115).

13.  In summary the applicant stated in her written submissions the following :

(1)  She has life threat in her country;

(2)  The Immigration officer did not like her and cancel her claim;

(3)  She appealed to the Board and the Board dismissed her claim;

(4)  She came to the High Court.  The High Court dismissed her leave application;

(5)  She did not request for oral hearing before the Court but the Court could call for an oral hearing; and

(6)  She requested the Court of Appeal to grant her leave.

14.  On 17 August 2023, the High Court Registry received a request from the applicant who indicated that she wished to close her case.  She stated that she wishes to return to Indonesia ‘with some reason’. 

7)  Our view

15.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

16.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

17.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.

18.  This also accords with the applicant’s request to have her case closed.