RE MASNAH

CAMP105/2019

[2020] HKCA 227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 105 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 712/2018)

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J U D G M E N T

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

1.  This is an application for leave to appeal against the decision of Deputy High Court Judge Josiah Lam given on 20 February 2019 refusing to grant extension of time for her application for leave 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 dated 18 August 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 3 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong to work as a foreign domestic helper.  After her employment was terminated prematurely, she remained in Hong Kong, overstaying since 11 February 2014.  She surrendered to the Immigration Department on 10 June 2015 and lodged a non-refoulement claim in August 2015. 

3.  The applicant’s claim was based on threats from her creditor, brothers and husband. The details of the applicant’s claim have been summarised by the judge at [2] to [16] of the CALL-1 form.

4.  By a Notice of Decision dated 3 January 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 9 August 2017, the Board dismissed the appeal on 18 August 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [82] of the Board’s Decision, the Board held that it did not consider that the applicant would be at any real risk of proscribed harm upon refoulement.  The Board was also satisfied at [80] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 24 April 2018 which contained no ground for seeking relief.  The Form 86 was filed 8 months after the Board’s decision.

8.  In her affirmation in support of the leave application dated 24 April 2018, the applicant advanced the following grounds for judicial review against the Director and the Board which are summarised below:

(1)  failure to conduct sufficient inquiry into the condition in Indonesia;

(2)  failure to conduct critical analysis of relevant Country of Origin information material;

(3)  failure to provide adequate reasons to explain why certain COI was preferred and cherry-picking COI information;

(4)  failure to consider properly the effectiveness of state protection;

(5)  failure to consider the psychological impact of her complained threats;

(6)  taking into account irrelevant considerations including the manner in which she departed Indonesia;

(7)  rendering irrational decisions; and

(8)  failure to give reasons for assessment of lack of BOR3 risk.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [36] to [48] of the CALL-1 form:

“36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

37. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 scrutinising 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.’

Late application for leave for judicial review

38. Order 53 Rule 3(1) of the Rules of the High Court reads: –

(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

39. Order 53 Rule 4(1) and (2) of the Rules of the High Court read: –

(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

40. It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is a good reason for extending time. The Applicant must provide good reasons for the Court to approve extension of time. It is a pre-requisite in late application for leave for judicial review. If the court is not satisfied there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.

41. In the present case, the Board’s decision was issued on 18 August 2017. The Applicant only applied for leave for judicial review eight months later on 24 April 2018. Excluding the three-month grace period for filing, she was late by five months.

42. The Applicant said she did not know she could apply for leave for judicial review and only knew about that later. She applied for legal aid on 2 November 2017 and the Director of Legal Aid refused her application on 29 December 2017. She then appealed against the refusal decision and the appeal was heard on 26 April 2018.

43. The Applicant's ignorance of the three-month time limit for applying for leave for judicial review was not a good reason. Her waiting for the legal aid result was no justification for late filing either. The Applicant could have proceeded with legal aid application and application for leave for judicial review at the same time.

44. The current application was late by five months. There was no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent was not insignificant. Discipline should be maintained in the area of public law. The current application for leave for judicial review involved no issue of general importance and the Applicant's argument had no merits at all (see below).

45. The Applicant complained against the Director and the Adjudicator. As said in paragraph 24 above, the Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I only need to be concerned with the Adjudicator’s decision.

46. The Adjudicator’s report showed the Adjudicator made detailed inquiry of the Applicant’s claim. He considered the Applicant's case thoroughly. There was no evidence the Adjudicator cherry-picked information or took into account irrelevant consideration. He had proper basis to disbelieve the Applicant's claim. He stated his finding with clear reasons.

47. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. There is no substance in any of the complaints by the Applicant. The Adjudicator had proper basis for his finding, conclusion and decision 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 claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

48. The current application for leave for judicial review is unjustifiably late. There are no circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. Her late application for leave for judicial review is dismissed.”

Application leave to appeal and grounds for appeal

10.  By a summons dated 5 March 2019, the applicant sought leave to appeal from the judge’s decision.  Her application was dismissed by DHCJ Bruno Chan on 20 May 2019.

11.  By a summons dated 30 May 2019, the applicant renewed her application for leave to appeal before this court.  In the summons and the affirmation in support of the same date, she explained that she was late in bringing the judicial review proceedings because she received the Board’s Decision late. 

12.  In her skeleton submissions dated 11 June 2019, the applicant identified a number of errors committed by the Board and the Director.  She also submitted that:

“[the judge] only consider that my fear is low, and doesn’t match with the provision of non-refoulement claim law, except special case will consider, may be my claim is low and private disputed against the loan shark but as a human being I have right to live free risk of life, which my country could not able to provide me, I have been suffering a terrible life and would be same if I return to my country…”

“[the judges] stated that there are no merit in my claim which can prove that I would face real risk if I return to my country. It appears to me that my claim is a private and personal matter alleged monetary disputes against money lender, but at least my claim I had shown I would it free of risk of harm upon refoulement to my country of origin, there I would be face risk of my life in Indonesia”

Discussion

13.  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.

14.  The applicant did not provide any good excuse for the delay in bringing the judicial review application.  In the application for leave to appeal, she claimed that she was late in filing the Form 86 because she received the Board’s Decision late.  She did not explain why that was the case.  In our view, this is not a good reason to grant extension of time for her leave for judicial review application.

15.  The applicant also failed to identify any viable ground of appeal.  The complaints against the judge’s decision in her skeleton submissions are vague and lacked particulars.  Further, the Board had held that the risk of harm is unlikely to materialize and that internal relocation was viable.  The applicant failed to identify any reason why these findings of facts should not be accepted.

16.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 30 May 2019 is dismissed accordingly.

17.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.