RE YASIN IMRAH BT NURDIN

CAMP 347/2021

[2022] HKCA 1489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 347 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1230 OF 2018)

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J U D G M E N T

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

1.  On 15 March 2021, DHCJ K.W. Lung (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 4 June 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 13 July 2021. 

3.  On 20 August 2021, the applicant filed a summons in CAMP 347/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance to the directions made by the Registrar of Civil Appeals on 20 August 2021, the applicant lodged her written submissions on 3 September 2021. 

5.  Under Order 59 r.14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is an Indonesian national. She last arrived in Hong Kong on 9 January 2013 employed as a foreign domestic helper.  Her employment contract was terminated prematurely and upon her application to the Immigration Department for an extension of stay, she was permitted to stay in Hong Kong until 30 August 2013.  However, she overstayed.  On 19 September 2013, she surrendered to the Immigration Department, and on 12 May 2014 she lodged a non-refoulement claim alleging that if refouled, she would be harmed or killed by her father, who is a fanatical Muslim imam, because she told him in September 2013 that she wanted to convert from Muslim to Christianity to which she had been exposed after coming to Hong Kong.  The factual background of this case was succinctly summarised by the Judge at [4] – [5] of the JR Decision ([2021] HKCFI 589).

7.  By a Notice of Decision dated 3 June 2016 and a Notice of Further Decision dated 14 September 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

8.  The applicant appealed the Director’s decisions to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 25 October and 7 November 2017 and by its decision dated 26 January 2018, the Board dismissed the appeal and confirmed the Director’s decisions.  For the reasons set out at [25] to [49], the Board did not consider that the applicant had made out a case on any of the applicable grounds.  It found that she had only encountered some unpleasant experiences at home over minor matters in practicing Islam, which had stopped after she moved away from home.  She did not suffer any severe pain or suffering.  Her fear of being burnt alive or killed as an apostate or a Christian was only her bare allegations based only on hearsay, without any evidence in support.  In this regard, the Board referred to relevant country of origin information (“COI”)  that the practice of Christianity is protected under the Indonesian constitution, and that the Indonesian government has made efforts to protect women from violence [30] and thus, there is reasonable state protection upon her return.  Internal relocation is a viable option.  In fact, she had experience of living in Bali which is predominantly Hindu.  Thus, it would not be unduly harsh for her to move to other places in Indonesia to avoid her father.  For the aforesaid reasons, her non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 29 June 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  She did not provide any ground for relief in the Form or in her supporting affirmation.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused leave for judicial review for reasons set out in [12] - [17] of the JR Decision:

“12.   As mentioned in paragraph 2 above, her application is late. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

‘… … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.’ [39]

I shall therefore consider the merit of the applicant’s case.

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. In a nutshell, the Board rejected her evidence on the facts in support of her claim.

14.  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.’

15.  The applicant has not set out any specific grounds in support of her application.

16.  The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time and filed a summons in the Court of First Instance on 4 June 2021 for an extension of time to appeal, which was dismissed by the Judge on 13 July 2021.  Hence, the Summons to this court. 

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3) the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.  As for (1), the applicant was late by more than 2 months between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was substantial.   

14.  As for (2), the reasons for the delay, the applicant explained in her summons and supporting affirmation that she did not receive the JR Decision.  The Judge noted that the JR Decision was sent to her last reported address on 15 March 2021 and it was not returned by the post office; hence, the Judge did not find any good reason for the delay.  

15.  We note that in the applicant’s written submissions to this Court, she provided her current address which is different from the one stated in the Court’s letter dated 15 March 2021 attaching the JR Decision.  She did not state when she moved, nor when (if ever)  she notified the Court of her change of address.

16.  It is the duty of the applicant to inform the Court of any change of address.  We find, as did the Judge, that there is no good reason for the delay.

17.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  In the Summons, supporting affirmation and written submissions filed in this Court, the applicant only stated her wish to appeal but had failed to provide any ground for her intended appeal against the JR Decision.

18.  It is clear from the Board’s decision that the applicant’s claim only involved two incidents of assault by her father when she missed prayer sessions when she was still school-age, they were private and personal in nature, and in any event the assaults did not result in any serious injury that attained the level of minimum severity that may amount to torture.  Relevant COI indicated that there is reasonable state protection and the applicant may safely relocate to other parts of Indonesia. It was perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.

19.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.  

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 20 August 2021.