RE RINI ARTINI

CAMP 25/2019

[2019] HKCA 648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 25 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 295/2018)

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J U D G M E N T

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

Introduction

1.  On 21 November 2018, Deputy High Court Judge Josiah Lam (“the Judge”) refused to grant an extension of time for the applicant to apply for judicial review.  The intended judicial review was the decisions of the Director of Immigration (“the Director”) rejecting the applicant’s claim for non-refoulement protection, as well as the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) upholding the Director’s decisions.

2.  On 30 January 2019, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to appeal against the said decision of the Judge.

3.  By a summons dated 11 February 2019, the applicant renewed her application for leave to appeal before this Court.

Background

4.  The applicant is a national of Indonesia.  She last entered Hong Kong on 28 August 2012 with a permission to work as a domestic helper.  Her employment contract was prematurely terminated on 17 September 2013, but she did not depart within 14 days after the termination.  She overstayed and was arrested by the police for breach of condition of stay on 16 October 2013.  She lodged her non-refoulement claim on 17 March 2014. 

5.  The applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed or killed by a loan shark because her family was unable to repay the loan owed to the loan shark.  The factual background was succinctly summarized by the Judge in [1] – [12] of the Form CALL-1 ([2018] HKCFI 2415).

6.  By two notices of decision dated 30 July 2015 and 1 August 2017, the Director assessed the applicant’s claim on all applicable grounds and determined the claim against her.  The former covered the BOR 3 risk[1], persecution risk[2], and torture risk[3], and latter the BOR 2 risk[4].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 26 October 2016.  After hearing the applicant, the Board found that the applicant failed to establish a case for non-refoulement protection on all applicable grounds.   It was found that the applicant had never been subjected to any physical harm.  The ill-treatment suffered by her did not attain the minimum level of severity.  Nor was there any suggestion that the Indonesian government had any adverse interest in the applicant.  It was also considered that internal relocation was a viable option for her.  Accordingly, the Board dismissed the applicant’s appeal/petition on 8 September 2017.

The Judge’s decision

8.  On 26 February 2018, which is 5 and a half months after the date of the Board’s decision, the applicant applied to the court for leave to apply for judicial review.  As mentioned earlier, according to the form 86, the intended judicial review was against the decisions of the Director and of the Board.  Whilst no grounds for seeking relief were contained in the form 86, the applicant put forth a number of grounds in her affirmation dated 26 February 2018.  The grounds involved complaints against both the Director and the Board.  The Judge summarized the in [25] of the Form CALL-1.

9.  Upon the request of the applicant, an oral hearing was held on 3 July 2018.  During the hearing, the applicant explained that she was not aware of the time limit for applying leave for judicial review.  She applied for legal aid on 3 October 2017 and had been waiting for the result.  After she learnt that her legal aid application was refused on 12 February 2018, she applied for leave to bring a judicial review: see [27] of the Form CALL-1.

10.  At [18] of the Form CALL-1, the Judge applied the principle laid down by this Court in Re Moshsin Ali [2018] HKCA 549.  It was held that the decisions of the Director were not amenable to judicial review, and the Judge would only consider the Board’s decision only in the leave application.

11.  Having considered the relevant case law and procedural rules, as well as the applicant’s explanation for the delay, the Judge refused to grant an extension of time for appealing. The Judge held that the delay was both undue and substantial.  Furthermore, for the reasons set out in [40] - [43], the Judge considered there was no merit in the intended judicial review:

“ 40. The Adjudicator’s report showed he made detailed inquiry of the Applicant’s claim. He was appreciative of the Applicant's alleged fear. The Adjudicator referred to sufficient COI and had proper basis to find that even if the Applicant faced risk, internal relocation was viable in her case.

41. The Adjudicator had considered the relevant facts of the Applicant’s claim. There was no evidence that the Adjudicator cherry-picked information or took into account irrelevant consideration.

42. The Adjudicator did not specifically say whether reasonable protection was available to the Applicant if she really needed it. Nevertheless, he rightly pointed out the Applicant had never sought such protection.

43. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.”

Application for leave to appeal

12.  On 4 December 2018, the applicant applied to the court for leave to appeal against the decision of the Judge.  Neither the summons nor the supporting affirmation filed on the same date contain any grounds of appeal.  By a decision given on 30 January 2019 ([2019] HKCFI 273), Deputy High Court Judge Bruno Chan dismissed the summons on the ground that there was no prospect of success in the intended appeal.

Renewed application for leave to appeal

13.  On 11 February 2019, the applicant renewed her application for leave to appeal before this Court. Again, neither the summons nor the supporting affirmation contained any proposed grounds of appeal. 

14.  In the written submissions lodged on 25 February 2019, the applicant explained that the reason of her delay in seeking leave to apply for judicial review was that she did not receive the Board’s decision at her home address, and when she received it, the time for applying leave had already expired.  She also set out the following proposed grounds of appeal in support of the present application:

(1)  The Director and the Board failed to make sufficient inquiry into the country of origin conditions in the contravention of the high standards of fairness as laid down by the courts;

(2)  The Director and the Board failed to take into account the facts that she faced genuine risk of harm by the loan shark, that his country failed to offer protection for her, and that she suffered mental distress because of her fear; and

(3)  She disagreed that there was no merit in her claim.

Legal principles

15.  In Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, another division of this Court held that the refusal to extend time for leave to apply for judicial review is interlocutory in nature. 

16.  According to section 14AA(1) of the High Court Ordinance (Cap 4), no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted.  Section 14AA(4) further provides that no leave to appeal shall be granted unless the court is satisfied that there is a reasonable prospect of success in the intended appeal, or that there is some other reason in the interests of justice that the intended appeal should be heard.

17.  In assessing the prospect of success 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, we only need to highlight the following principles:

(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 of appeal 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

18.  In our judgment, there is no prospect of success in the intended appeal.  It is clear to us that the Judge was correct in refusing to grant an extension of time for her to apply for judicial review.

19.  The applicant was 2 and a half months late in making the application.  The Judge was entitled to hold that the delay was substantial.  

20.  We do not believe the applicant’s assertion that she had not received the Board’s decision at her home address and that, when she received it, the time limit for applying leave had already expired.  She did not give that explanation in her affirmation of 26 February 2018 placed before the Judge. Instead, the applicant told the Judge at the hearing that she applied for legal aid on 3 October 2017 and she was ignorant of the time limit: see [27] of the Form CALL-1.  We agree with the Judge that there was no good reason for the delay.

21.  It is not correct for the applicant to suggest that the Board failed to make sufficient inquiry.  The Board had done so: see [48] – [57] of its decision. 

22.  Her submissions basically regurgitated her arguments canvassed below.  Her disagreement with the assessment by the Board (and the Judge’s endorsement of the same) cannot by itself be a valid ground of appeal.

23.  In the absence of any proper ground for disturbing the analysis of the Judge, this Court should not intervene.  

24.  Since the applicant failed to pinpoint any error in the Judge’s decision, the intended appeal is bound to fail.

25.  It would be futile to extend the time for a hopeless appeal to be brought.  Accordingly, we refuse the application for leave to appeal, and dismiss the applicant’s summons.

26.  Since the application is totally without merit, we further make an order under Order 59 Rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.