RE ABDUL KARIM HENI SRI UTAMI

CAMP 243/2023, [2024] HKCA 332

On Appeal From [2023] HKCFI 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 243 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 171 OF 2019)

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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 30 June 2023, the applicant took out a summons to reapply for extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 19 April 2023 ([2023] HKCFI 1012) (“the Leave Decision”) refusing leave to apply for judicial review. On 29 June 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 1646) (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 4 December 2018, dismissing the appeal against the decision of the Director of Immigration (“the Director”) 30 January 2018 rejecting the applicant’s non-refoulement claim.

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”).

BACKGROUND

4.  The applicant is a national of Indonesia.  She last arrived in Hong Kong on 21 December 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract, or within 14 days of its early termination.  Her last employment contract was terminated on 1 March 2015.  She did not depart and instead overstayed, and was arrested by police on 9 January 2016.  On 18 February 2016, she raised a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor over her outstanding debts.  Details of the applicant’s claim have been summarised by the Judge at [1] ‑ [4] of the Leave Decision.

5.  By a Notice of Decision dated 30 January 2018 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim on all applicable grounds including risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 4 December 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [8] of the Leave Decision:

“8. In its decision the Board found inconsistencies and contradictions in the Applicant’s evidence that undermined the reliability of her claim of fear of harm from her creditor that caused her to seek non-refoulement protection in Hong Kong, but found in any event even if such risk is real that it arose from a private monetary dispute without any official involvement that state/police would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely away from her home district to other part of the country away without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.”

7.  On 17 January 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  No ground of review was given in the Form 86 or supporting affirmation.

8.  On 3 September 2021, she lodged written submissions advancing the following grounds in support of her application:[5]

(1)  Procedural unfairness in that the Board unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirements;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3)  Procedural unfairness in that the Board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  Procedural unfairness in that the hearing bundle for her appeal was not provided to her earlier or with any interpretation as the majority of the documents were in English which she was not familiar due to her limited skills in English and being unrepresented thereby given her insufficient time to prepare for her appeal hearing before the Board; and

(6)  That the Board had significantly relied on the source of news not officially recognized or were simply hearsays or outdated which resulted in making groundless speculations that it would be safe for her to return to her home country.

9.  On 7 March 2023, the applicant attended an oral hearing in person before the Judge.  An Indonesian interpreter was present to provide language assistance.

THE JUDGE’S DECISION

10.  On 19 April 2023, the Judge refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [10] ‑ [16] of the Leave Decision:

“10. These are however just all vague and bare assertions of the Applicant containing a few key words or phrases but without the necessary or relevant details or particulars or elaborations as to how they apply to her case, or how did the Board err in its decision or in what way did the Board unlawfully fetter its discretion or how did the Adjudicator act in a procedurally unfair manner, or what COI relied on by the Board were unofficially recognized or were hearsays or outdated. None of these assertions were supported by any particulars or specifics or elaboration from the Applicant that I do not find any of them reasonably arguable for her intended challenge.

11. As for her only complaint with any details or elaboration of not given sufficient time to prepare for her appeal to the Board as the majority of the documents in her hearing bundle for her appeal were in English which she was not familiar with and as she was unrepresented that she was confused as to what happened at the hearing of her appeal before the Board, even if it is true that the hearing bundle were indeed provided to her late as suggested, and the Applicant never provided any supporting documentary evidence such as the accompanying letter or envelop that contained the bundle served on her, I note that most of the documents including her NCF, record of her screening interviews before the Director and the Director’s decision should be familiar to her as they were already available to her in her process before the director when she was legally represented by DLS, while her NCF was prepared on her own instructions by her lawyer, and at her hearing before the Board she never raised any such issue over the hearing bundle or requested to have more time to prepare for her appeal. As such I do not find anything amiss arising from the provision of the hearing bundle to the Applicant in her appeal before the Board or that there is any merit in this complaint of hers.

12. In the circumstances, 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 the Applicant’s 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 correctly stablished 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 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.”

11.  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.

12.  On 5 May 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was two days late with her intended appeal.

13.  On 29 June 2023, the Judge refused the applicant’s application.  The Judge noted that although a delay of two days was not significant, the applicant failed to provide a good or valid reason for her delay.  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

14.  By a summons and a supporting affirmation taken out on 30 June 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In her summons, she did not provide any reason for her delay or ground in support of her application.  In her supporting affirmation, the applicant only disagreed with the Leave Decision as it was unfair to her.

15.  Pursuant to the directions of the Registrar of Civil Appeals dated 30 June 2023, the applicant lodged her written submissions on 10 July 2023.  In those submissions, she complained that there had been a lack of language and legal assistance which caused procedural unfairness.  She further complained that the Board’s Decision was not read to her in her own language.

DISCUSSION

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.  Although a delay of two days is not significant, we are of view that her application plainly has no merit.

21.  At the outset, there is also no substance in the applicant’s complaint as to the lack of legal representation or language assistance. There is plainly no legal basis for any contention that she was or is entitled to legal representation at all stages of the proceedings.  See: 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.  Further, we noted that all court documents filed and lodged by the applicant are written in English.  In the premises, it is clear that either the applicant is herself conversant with the English language or has access to language assistance of her own if she finds it necessary. Similarly, there is nothing in her contention that the Board’s Decision was not read to her in her own language.  She advanced grounds of her intended judicial review against the Board’s Decision before the Judge by way of her written submissions dated 3 September 2021.  There is therefore nothing in these complaints in relation to her lack of language assistance.

23.  In any event, her intended appeal is devoid of merit.  The applicant’s complaints against the decision the Board are general allegations without particulars.  More importantly, the applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.  We see no reason to interfere with the Leave Decision.

24.  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

25.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 30 June 2023 is dismissed.