RE ISWINARMI

CAMP 120/2023, [2023] HKCA 1151

On Appeal From [2022] HKCFI 3112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 120 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1772 OF 2019)

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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 7 October 2022, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning the applicant’s non-refoulement claim ([2022] HKCFI 3112, “the JR Decision”). Under Order 53 r.3(4) of the 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 with the Court of First Instance on 15 November 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 13 March 2023 ([2023] HKCFI 728).

3.  On 24 March 2023, the applicant filed a summons in CAMP 120/2023 (“the Summons”) applying to this court for an extension of time to appeal against the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 24 March 2023, the applicant lodged her written submissions in support of the Summons on 6 April 2023.

5.  The applicant wrote a letter which was received by the court on 29 August 2023 seeking to withdraw her intended judicial review application. This court will treat it as a request to withdraw her summons for extension of time to appeal against the JR Decision. Nevertheless, the practice of this court is to consider and if appropriate dismiss such application instead of merely granting leave to withdraw: see Rini Artini [2020] HKCA 709 at [9].

6.  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

7.  The Applicant is a national of Indonesia. She had worked in Hong Kong since 2000 as a foreign domestic helper. Her last employment was prematurely terminated in August 2008 but she did not return to Indonesia. In March 2009 she was detected as having overstayed when attempting to depart Hong Kong. In April 2012, she raised a torture claim (“CAT claim”) on the basis that she would be harmed or killed by her family if she returned to Indonesia for marrying a Christian and for converting from Islam to Christianity. The CAT claim was rejected on 7 June 2013, from which she did not appeal. In the meantime, in 2012, she lodged a non-refoulement claim (“the non-ref claim”) based on the same allegations. The factual background was succinctly summarised by the Judge at [1] to [4] of the JR Decision ([2022] HKCFI 3112).

8.  By a Notice of Decision dated 17 April 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim. As her torture claim had been rejected previously, the Director’s decision covered the BOR 2 Risk[1], the BOR 3 risk[2] and persecution risk[3].

9.  The applicant lodged an appeal with the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) against the Director’s decision. She attended a hearing on 3 December 2018. According to the Board’s Decision, it was prepared to give her the benefit of the doubt that her family had threatened and physically abused her in the past due to their opposition to her marrying her (now deceased) husband and becoming a Christian [42]. Therefore it held that the applicant has substantiated her claim under persecution risk and/or BOR 3 risk if she is refouled to Indonesia and resumes living in her home village. However, the Board assessed that she will not face a real risk of the proscribed harm if she relocates to a large population centre such as Jakarta where there are many churches and where (and the applicant did not dispute this) there was no real risk that her family would know of her relocation there, let alone be able to find her [46]. Therefore, the Board dismissed the applicant’s appeal on 1 April 2019.

Application for leave to apply for judicial review

10.  On 26 June 2019, the Applicant filed a Form No. 86 with the Court of First Instance for leave to apply for judicial review of the Board’s decision. She advanced the following grounds in her written submissions for her intended challenge:

(1)  the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the ground that they did not satisfy the requirement;

(2)  the adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3)  the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

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

(5)  the bundle of document for her appeal to the Board was provided to her without giving her sufficient time to prepare for her appeal hearing so she was confused at the hearing;

(6)  despite having answered all the questions honestly, her credibility was found questionable which was the result of a lack of care of the Board to make appropriate arrangements in relation to the hearing bundle;

(7)  the Board had significantly relied on source of news which is not officially recognized or simply hearsay. It also relied on some cases which are outdated. These led to groundless speculation that it is safe for the applicant to return to her home country.

The JR Decision

11.  The applicant attended a hearing before the Judge on 12 July 2022. The Judge refused to grant leave to apply for judicial review for reasons set out in [10] - [14] of the JR Decision:

“10. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they are to apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or which source of news relied on by the Board were not officially recognized or were hearsay or outdated, or in what way did the Board make groundless speculation about internal relocation for her to safely return to her home country. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

11. 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.

12. As for her complaint over the provision of the hearing bundle for her appeal before the Board, even if it is true that the hearing bundle was indeed provided to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her SCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her SCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board, nor do I find this ground reasonably arguable either.

13. Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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.

14. 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.”

Application for extension of time to appeal against the JR Decision

12.  As mentioned earlier, the applicant failed to file a notice of appeal within time. She filed a summons in the Court of First Instance on 15 November 2022 for an extension of time to appeal, which was dismissed by the Judge on 13 March 2023. Hence, the Summons to this court.

Discussion

13.  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).

14.  As for (1), the applicant was late for more than 3 weeks when she filed the time extension summons with the Court of First Instance.

15.  As for (2), the reasons for the delay, the applicant explained that she did not receive the decision from the court. There is no allegation that she had changed her address and that she had informed the court of such. The court had sent the decision by post to the applicant’s address on the date of handing down on 7 October 2022. It is the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]). Therefore, the applicant’s explanation cannot justify her delay.

16.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.

17.  The applicant stated the following grounds in her written submissions:

(1)  She disagrees with the decisions of the Director and the Board. She thinks that her case has not been determined fairly.

(2)  She was never provided with proper legal and language assistance and the failure in providing proper assistance to non-refoulement claimant is procedurally unfair.

(3)  The authorities should take into account the real procedural unfairness throughout the case and put public policies of trying to dispose of non-refoulement claims as quickly as possible aside.

(4)  If a litigant has not been informed fully of her right and given opportunity to be heard with such assistance, it cannot be said that the assistance cannot be of any use.

(5)  The discriminatory act of the authorities towards non-refoulement claimants to quickly dispose of non-refoulement cases is unacceptable and is detrimental to the spirit of the judicial system.

18.  In the present case, interpretation services were provided at hearings at every stage and the applicant was assisted by a Duty Lawyer in the formulation of her claim.

19.  Furthermore, the Court of Appeal has repeatedly stated that an applicant in a non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings: Re Paswan Shibu Lal [2018] HKCA 249 at para 21. The applicant already had the benefit of legal representation in presenting her case to the Director.

20.  Therefore, the grounds relating to procedural unfairness are untenable. The rest of the grounds are bare assertions.

21.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and duly considered the applicant’s grounds. The applicant has not identified anything amiss in the JR Decision. We agree with the Judge that there is no prospect of success in the applicant’s intended application for judicial review and the leave application should be refused.

22.  As the intended appeal is unarguable, irrespective of the applicant’s letter stating her wish to return to Indonesia as her problem has been settled and it is safe for her to return, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 24 March 2023.