SUMARSIH v. DIRECTOR OF IMMIGRATION AND ANOTHER

CAMP 1/2020

[2020] HKCA 565

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 125/2016)

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JUDGMENT

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

Introduction

1.  On 22 November 2016, Li J refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 21 June 2016.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 16 April 2015 rejecting the applicant’s non-refoulement claim.

2.  The applicant lodged a summons on 9 August 2019 seeking an extension of time to appeal against the refusal of leave to apply for judicial review.  On 20 December 2019, Li J refused to grant leave for the applicant to appeal out of time against the refusal of leave for judicial review.

3.  By a summons dated 2 January 2020, the applicant sought leave from this Court to appeal against Li J’s decision of 20 December 2019.

Background

4.  The applicant was employed as a domestic helper in Hong Kong from 2002 to 2003 and from 2006 to 29 December 2013.  On 28 December 2013, she was arrested by customs officers in connection with the import of cigarettes.  Her domestic helper contract was terminated the next day.  She was convicted for taking up unapproved employment and other offences, and was sentenced to 3 months’ imprisonment.  While serving her sentence, she lodged a non-refoulement claim.

5.  The basis of the applicant’s non-refoulement claim was that she was named as the guarantor of a loan for 50 million rupiahs that her husband borrowed from a loan shark and that, if she returned to Indonesia, she feared she would be harmed or even killed by the loan shark as her husband was unable to repay the loan.

6.  In the Notice of Decision dated 16 April 2015, the Director assessed the applicant’s claim on the grounds of BOR 3 risk[1], persecution risk[2], and the torture risk[3]. The Director found that there was no genuine and substantial BOR 3 risk, no persecution risk and no torture risk to the applicant, thus the Director rejected the applicant’s claim.

7.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  The Board disposed of the appeal on a review of documents without an oral hearing as there were no issues of credibility or issues that needed clarification. 

8.  The Board considered that there was no torture risk as there is nothing to suggest that the loan shark’s threats were done at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  The Board found that there was no persecution risk as the applicant did not fall into any of the categories of persecution under Article 1A(2) of the 1951 Convention relating to the Status of Refugees.

9.  Further, based on the applicant’s own evidence the Board found:

(a)    the applicant first heard of the loan during a telephone call from her husband in early 2013;

(b)    she had only spoken twice to the loan shark, when she received two telephone calls from him in November and December 2013 but never met him and does not know his name or anything about him; and

(c)    she had no knowledge of the loan agreement, was ignorant of the fact that she was been named as guarantor in the agreement.

10.  Hence, the Board found that the applicant had not established a genuine and substantial risk of any harm were she to return to Indonesia.  Thus the Board found that there was no BOR 3 risk. 

11.  The Board also found that internal relocation was a viable option within Indonesia and that there was adequate state protection.  Thus the Board dismissed the applicant’s appeal/petition on 21 June 2016.

12.  The applicant had also applied separately on 5 July 2016 for non-refoulement based on BOR 2 risk. That was assessed and rejected by the Director on 8 February 2017.  She had also petitioned to the Board and the Board dismissed the same on 11 July 2019. That decision was not part of the application for judicial review (which was brought by her in 2016).  She has not made any application for judicial review regarding the Board’s decision of 11 July 2019[4]. Thus, her intended appeal is not related to BOR 2 risk.  In any event, given the finding on lack of substantial risk of harm, her BOR 2 risk cannot get off the ground.

Decisions of the court below

13.  On 11 July 2016, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The Form 86 and supporting affirmation did not contain any ground for seeking relief. 

14.  Upon the request of the applicant, an oral hearing was held on 15 November 2016 before Li J.  After summarizing the background of the case and giving due consideration to the decisions of the Director and the Board, Li J refused to grant leave for the applicant to apply for judicial review.  The reasons in refusing leave were set out in the Form CALL-1 (22 November 2016) as follows:

“ During the hearing, the applicant told this court that she was still waiting for the information from her family which could prove that she had a problem in Indonesia. She confirmed that there was no further development since her submission to the Director in 2015.

According to her brother, her husband only managed to repay one instalment. She asked for extension of stay until her husband cleared the debt. However, she had no idea how long would it take. She confirmed that there was no further document to submit.

She had not applied for legal aid despite she indicated such intention in the letter to this court in July 2016. She explained that she wanted to wait for the information from her family. In fact, she had been seeking the information from her family about the situation at home in February 2015 (see para. 6.11 of the decision of the Director).

I have considered the content of the non-refoulement claim as set out in the determination of the Director of Immigration and the Adjudicator. I agree with the reasons therein.

The applicant’s claim is incredible. There is not a shred of evidence to support her alleged fear. There is no arguable public law ground.

Conclusion

 In my judgment, the leave application is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review.”

15.  In her summons of 9 August 2019 for an extension of time for appealing against the refusal of leave to apply for judicial review, the applicant stated that she had never received the decision refusing leave for judicial review, as she had changed her address without informing the court. 

16.  Li J heard the summons on 10 October 2019.  In his decision dated 20 December 2019 ([2019] HKCFI 3133), Li J’s reasons for refusing an extension of time were as follows:

“ During the hearing on 10 October 2019, the applicant stated the following:

(a) She could not remember the date of moving to the new address at San Lee Uk Tsuen, Yuen Long. She lived there for less than a year.

(b) Before that in 2018, she lived at Nai Wai, Yuen Long for several months. She had informed the Immigration Department.

(c) In 2016 – 2017, she lived at the address given to this court, i.e., Rm C, Flat F, 6/F., Far East Mansion, 5-6 Middle Road, Tsim Sha Tsui.

(d) This court pointed out to her that in November 2016, the decision of this court was sent to her address at Tsim Sha Tsui, the applicant then said that the landlord kept the key of the letter-box. The landlord did not inform her of the letter from this court.

(e) This court pointed out to her that this was not her reason in the summons, she then explained that she intended to inform the court about the landlord during the hearing.

(f) The applicant confirmed that the Immigration Department informed her of the decision on 23 July 2019.

I find the applicant unreliable in her reasons. She only made up the explanations when she was contradicted. In my view, she has a duty to update her address. I reject her reasons.

The applicant is out of time for about 21 months.  She must have cogent reasons before extension of time would be granted.  The applicant fails to provide any.”

The renewed application before this Court

17.  On 2 January 2020, the applicant took out a summons seeking leave to appeal against the decision of Li J dated 20 December 2019 refusing leave to appeal out of time.  Her stated grounds of appeal in the summons were that she was unable to submit her document proof but her life would still be threatened by the loan shark who made trouble for her family in her country and that the police in her country never took proper action against the loan shark.  In her supporting affirmation of 2 January 2020, the applicant deposed that she needed more time to obtain her supporting document from her country.

18.  In her written submissions lodged on 14 January 2020, the applicant explained her difficulties in obtaining police report in Indonesia and a copy of the loan agreement.

Legal principles

19.  Whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal out of time against the substantive decision of Li J.

20.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

21.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has merit in the intended appeal.  Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

22.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

23.  In the present case, the applicant was late in her application for extension to appeal by approximately 21 months.  It is a very substantial delay, and as pointed out by Li J, the applicant had not provided any cogent reasons for the delay.  Thus, a higher threshold on the merit is called for before extension of time would be granted.

24.  We turn to examine if the intended appeal has a real prospect of success.

25.  In the present application, the applicant did not identify any specific errors in Li J’s decision or any other potential grounds for reversing Li J’s decision, nor did she address any issue of merits in the intended appeal.  Having considered the materials before us, we are of the view that Li J’s observations that the applicant’s application for leave for judicial review is not reasonably arguable and that there is no realistic prospect of success, are fully justified.  Li J has applied the relevant legal principles correctly and is plainly right to refuse an extension of time to appeal against the refusal of leave for judicial review.  There is no reasonably arguable ground to challenge Li J’s decision.

26.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 2 January 2020 is dismissed accordingly.