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CAMP 539/2022, [2024] HKCA 258
On appeal from [2022] HKCFI 2993
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 539 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 2294/2018)
____________________
| RE: |
Yuli Ifa Kusrini |
Applicant |
____________________
| Before: |
Hon Chu VP and Barma JA and in Court |
| Date of Judgment: |
20 March 2024 |
___________________
J U D G M E N T
___________________
Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 24 November 2022 refusing to extend time for the applicant to appeal against his decision dated 30 September 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 14 September 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 18 October 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).
Background
2. The applicant is a national of Indonesia. She entered Hong Kong as a foreign domestic helper on 18 September 2014, but she overstayed and was arrested by the police on 10 May 2015. Thereafter, she lodged a non-refoulement claim on 20 May 2015.
3. The applicant’s claim was based on a fear of being harmed or killed by her husband. The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of his decision (“the CALL-1 Form”)[1].
4. By the Director’s Decision, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board. After a hearing on 17 July 2018, the Board dismissed the applicant’s appeal by its Decision. In dismissing her appeal, the Board found on the facts that the applicant had already separated from her husband, and that he had no ongoing interest in her. There was therefore no real risk of harm from the applicant’s husband towards her if she were refouled.
The Judge’s decision
6. The applicant filed a Form 86 on 22 October 2018 seeking to judicially review the Board’s Decision, without setting out any grounds for review. In her supporting affirmation, the applicant merely stated that she was not satisfied with the “immigration decision” and that her life was in danger should she return to Indonesia.
7. After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [20] of the CALL‑1 Form:
“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
16. 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.”
17. The applicant has not raised any valid reason to challenge the Board’s Decision.
18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
20. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
The present application for extension of time to appeal
8. The applicant’s last known address at the time of the Judge’s decision was at Nam Cheong Street, Sham Shui Po (“the SSP Address”).
9. According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the SSP Address on 30 September 2022, and it was not returned undelivered.
10. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 30 September 2022.
11. The applicant thereafter took out a summons in the Court of First Instance on 28 October 2022 seeking extension of time to appeal, in which her address was stated to be the SSP Address. In the supporting affirmation, she stated that she did not receive the Judge’s decision in time, and that her friend had helped her download a copy of the same from the judiciary website.
12. The applicant’s application to appeal out of time was dismissed by the Judge on 24 November 2022[6].
13. By a summons filed on 19 December 2022, the applicant renewed her application for an extension of time to appeal before this court. In the summons and her supporting affirmation, the applicant sought an extension of time to appeal against the decision given by the Judge on “24-Nov-2022”, being the Judge’s refusal to grant an extension of time for her to appeal against his decision dated 30 September 2022. Although in her summons the applicant purported to appeal against the decision of the Judge dated 24 November 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 30 September 2022, by which leave for judicial review was refused.
14. In her supporting affirmation, the applicant stated that she disagreed with the “decision mak[ing] authorities [the Director and the Board]” as she contended that such decisions have not been “determined fairly”.
15. The applicant lodged her written submissions on 3 January 2023, wherein she repeated her disagreement with the Director’s and the Board’s Decisions, and claimed that she was prejudiced in the process by the lack of language assistance and legal representation.
16. However, the applicant subsequently wrote to the court on 5, 12 and 23 June 2023, stating that she wished to “close” her case because she wished to return to Indonesia “as soon as possible” as it was now apparently “safe to go back”.
Discussion
17. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
18. As noted above, the Judge’s decision was sent to the last known address of the applicant and was not returned undelivered. The inference to be drawn is that she has received the letter from the court, and she has had knowledge of the Judge’s decision within the period she was permitted to lodge the intended appeal.
19. Further, there is no explanation on the part of the applicant as to when she had come to learn of the Judge’s decision dated 30 September 2022.
20. Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.
21. Given the delay and the applicant’s withdrawal application, the usual course would be for this court to simply dismiss the summons. This notwithstanding, for the following reasons, we would have dismissed the summons in any event, as we do not consider there to be any merits in the intended appeal.
22. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
23. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
24. We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.
25. Further, the applicant’s complaint of prejudice by reason of her lack of proficiency in English is unfounded and of little or no merit. We note that she was able to, either by herself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.
26. It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge. This has clearly not been done here.
27. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 19 December 2022 is accordingly dismissed.
(CARLYE CHU)
Vice-President |
(AARIF BARMA)
Justice of Appeal |
The applicant acting in person
[1] [2022] HKCFI 2993
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2022] HKCFI 3456
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