RE USMAN YUMIATI

CAMP 198/2020

[2021] HKCA 992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 198 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 285 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

The Court:

1.  This is an application for extension of time to appeal against the decision of Campbell-Moffat J given on 7 August 2020 refusing 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 27 September 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 18 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong in 2004 to work as a foreign domestic helper.  Her last contract was terminated on 19 September 2013.  She was granted permission to stay as a visitor until 14 November 2013 but she did not leave before the deadline.  Instead, she overstayed and lodged a non-refoulement claim on 4 April 2014.  She later surrendered to the Immigration Department on 26 May 2014.

3.  The applicant’s claim was based on threats from her husband and the discrimination and difficulties associated with having a son of mixed race born out of wedlock.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 18 April 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the 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 7 September 2017, the Board dismissed the appeal on 27 September 2017 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [38] - [42] of the Board’s Decision, the Board found that the applicant fabricated her claim about being married to a man known as Adil and did not accept the applicant’s case that she was threatened by her husband.  The Board also found that the applicant is unlikely to face any significant level of difficulty or discrimination for being a single mother with a baby of mixed race and that she may safely relocate to other parts of Indonesia.  The Board dismissed her claim for protection under all of the applicable grounds ([47] – [49] of the Board’s Decision).

The judge’s decision

7.  The applicant filed a Form 86 on 22 February 2018 against the Director’s Decision, which contained no ground for seeking relief.

8.  In her affirmation in support of the leave application filed on 22 February 2018, the applicant deposed that:

“To appeal and review and reject the decision made by the Immigration Department against my claim. They disregard my dangerous situation.”

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  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 grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [5] to [11] of the CALL-1 Form:

“5. In accordance with Order 53, rule 3, the applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 22 February 2018. Under Order 53, rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 27 September 2017 and expired on 27 December 2017.

6. It is incumbent upon the applicant to provide good reason for extending time. The applicant has submitted no explanation for her delay and has not sought leave for an extension of time. I have nevertheless considered the principles applicable to granting such an extension if an application had been made and those are:

1)  the length of delay;

2)  the reasons for delay;

3)  the prospects of success in the intended appeal; and

4)  the prejudice to the putative respondent and administration of justice if extension of time were granted.

7. In this case, the applicant was late by a month and 26 days and has not offered any explanation for this delay. Nor for that matter has she explained why it took a further five months to apply for legal aid. In view of the absence of good reason (or indeed any reason)  for the delay in filing her Form 86, she must satisfy the court that there is a reasonable prospect of success in her intended leave application and that there will be no prejudice to the putative respondent or administration of justice if an extension of time were to be granted. As to the latter, there is no suggestion there would be any such prejudice, save that it is in the interest of justice for matters subject to judicial review to be dealt with expeditiously. This application therefore turns upon the likelihood of success of her application for judicial review.

8. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with. It can therefore only be an application to apply for leave to judicially review the Decision of the Adjudicator. The applicant must therefore show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with her application in order to obtain an extension of time to seek leave to judicially review that Decision.

9. All of the papers considered by the Director, were before the Adjudicator. She arranged for an oral hearing and went to some lengths to consider the position of mother and child if refouled back to Indonesia given her son’s illegitimacy. This was the most obvious area of concern rather than the unfounded claim that her husband would find her and kill her if she returned. In fact, after some discussion, the Adjudicator found that the overwhelming concern of the applicant was simply to have her son remain in Hong Kong. She satisfied herself that the applicant could avail herself of a number of services for people in their position and that the likelihood of harm to either of them was low. There was no suggestion within the materials that they would be refused such assistance. As for any harm from her husband, this too was speculative in nature. Her ex-boyfriend was currently providing for them financially and would continue to do so if she was returned to her home country.

10. In the absence of any reason for the delay and any grounds of review, the court is left with the bare facts as relied upon by the applicant and the application of the law to those facts by the Adjudicator, along with the explanation given by her within the Decision. Having analysed that Decision, the applicant’s NRF claim is extremely weak and was rejected on that basis after due process. There is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted an extension of time to apply for leave to judicially review that Decision.

11. This application is refused.”

Application for extension of time to appeal and grounds for appeal

11.  By a summons dated 27 August 2020, the applicant sought leave to appeal out of time before the judge.  The applicant was not in fact out of time for bringing the intended appeal and she did not need to apply for extension of time from the court below.   It is because by section 31(1)  of the High Court Ordinance (Cap 4), time for service of the appeal does not run in the summer vacation unless the court otherwise directs.  The month of August is the summer vacation of the court and time does not run in August ([8.1] – [8.4] re: Rana Jaswant [2019] HKCA 102; [2019] 2 HKLRD 347). Hence the time to appeal against the decision of 7 August 2020 did not expire until 14 September 2020 which is 14 days after the end of the August vacation.

12.  Had her application been heard before 14 September 2020, the judge could have simply made no order on the application.  This, however, was not the case.  Her application was heard on 20 October 2020 by which time to serve the notice of appeal had expired and inevitably the judge had to consider the application. Her application was dismissed by the judge on the same day.

13.  By a summons filed on 28 October 2020, the applicant renewed her application for an extension of time to appeal before this court.  In the summons she stated that:

“…I would like to appeal against the court’s decision and seek extension of time to file appeal. The court has underestimated the possible danger and harm I will face should I return to my home country. Also, I did not lie and contradict myself. I did not received any decision letter regarding the judicial review from the court. Moreover, as a foreigner who has poor command of written English and Chinese, I do not understand the judicial system in Hong Kong. I need to ask someone for help. It was until I found an NGO who could help then I know what to do. Thus I would like to appeal against the court’s decision and seek extension of time to file the notice of appeal.”

14.  In her affidavit filed on the same day in support of the application, the applicant repeated the matters raised in the summons.

15.  In her skeleton submission dated 3 February 2021, the applicant explained why it is unsafe for her to return.  She also attached a copy of an appointment slip of the Tuen Mun Hospital Child & Adolescent ASD to the submission.  She submitted that her son’s problem caused delay in her application and asked for forgiveness for the delay.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 rule 14A of the Rules of the High Court.

17.  We are of the view that the applicant has not provided any reasonable explanation for her delay in bringing the intended appeal.  Although the applicant gave a variety of reasons for the delay, she did not give any particulars of any of them (such as she was not able to receive the mail enclosing the CALL-1 Form or the dates of medical appointments involving her son). 

18.  We nonetheless go on to consider the merits of the intended appeal.

19.  Most of the grounds of appeal are not related to an error on the part of the judge. They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  

20.  As for the ground based on the alleged underestimation of the danger to her by the judge, we note that this ground was never raised before the judge.  Further, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The judge would not be required herself to come to a view on the danger to the applicant even if this ground had been raised before her, as the primary decision maker is the Board.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

21.  In any event, the Board has already dismissed the applicant’s claim that she faced danger from her alleged husband and the applicant failed to substantiate any error in the Board’s Decision.  There was nothing to challenge the Board’s finding in this regard.

22.  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 filed on 28 October 2020 is dismissed accordingly.

23.  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.