RE PURWANTI TRI

CAMP 432/2022, [2023] HKCA 1036

On Appeal From [2022] HKCFI 1086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 432 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 394 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 14 April 2022, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim and dismissed her leave application (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“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 16 May 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 5 October 2022.

3.  On 19 October 2022, the applicant filed a summons in CAMP 432/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 19 October 2022, the applicant should lodge her written submissions in support of the Summons on or before 2 November 2022.  However, she only lodged her written submissions on 7 November 2022 without any explanation for her delay. 

5.  On 21 July 2023, the applicant sent a letter to the court stating that she would like to “open case of repeal stay in Hong Kong to be arrange me to repatriation is go back to my country Indonesia, now my condition and my situation is get more better now, so I can go back to my country Indonesia.  Please to consider for my repatriation as soon as possible”.  However, she did not file any application for dismissal or withdrawal of the Summons. 

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 last arrived in Hong Kong on 7 November 2013 with permission to work as a foreign domestic helper.  Her employment was prematurely terminated on 24 October 2015 but she did not depart and instead overstayed.  She was arrested by the police on 9 March 2016 and on 11 April 2016, she raised a non-refoulement claim alleging that if refouled, she would be harmed or even killed by her father’s creditor as she did not repay his outstanding debt.  The factual background of this case was succinctly summarised by the Judge at [2] – [5] of the JR Decision ([2022] HKCFI 1086).

8.  By a Notice of Decision dated 5 January 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

9.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 6 December 2018.  By its decision dated 28 January 2019, the Board dismissed the appeal.  For the reasons set out at [26] to [49], the Board did not accept the applicant’s account of having an outstanding loan as she failed to say what was the amount of loan, she failed to identify the man who she said she would be forced to marry to repay her father’s loan, and was unaware of the financial situation of her family.  Even on her own evidence, she had not been in touch with her family since 2013 and the Board did not believe that the creditor would wait for that long to pursue an outstanding loan.  The Board noted that the applicant in fact agreed with her interviewing officer that it would be possible for her to relocate to other parts of Indonesia such as Jakarta or Surabaya.  The Board found that the applicant had failed to substantiate her case on all applicable grounds and her appeal/petition was dismissed.

Application for leave to start judicial review

10.  On 12 February 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and Board’s decisions.  She did not advance any ground for relief and just attached copies of the decisions in her supporting affirmation.

The JR Decision

11.  The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [11] - [13] of the JR Decision:

“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. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her 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.

13. 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 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 16 May 2022 for an extension of time to appeal. That was dismissed by the Judge on 5 October 2022.  Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appeal, 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 by 18 days between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was not insignificant.

15.  As for (2), the reasons for the delay, the applicant did not provide any explanation in her summons or affirmation filed in the Court of First Instance.  In the summons and supporting affirmation filed with this Court, the applicant alleged that she did not receive the JR Decision on time.  The court file showed that the JR Decision was sent to the applicant’s last reported address on the date it was handed down and it was not returned as undeliverable mail.  In the absence of any corroborating evidence, we do not accept her bare assertion of not having received the JR Decision as the reason for her delay.

16.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any valid grounds of appeal to challenge the Board’s decision nor did she pinpoint any error in the JR Decision. 

17.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility as her evidence was vague, lacking details and unconvincing.  In any event, internal relocation is a reasonable and viable option for her.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.  We see none in this case.

18.  We are also 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.  Also since the applicant has written to the court saying that she can go back to her country, it is difficult to see any purpose in her challenge of the Board’s decision.

19.  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 19 October 2022.