RE SITI AISYAH TOSIR

CAMP 395/2022, [2025] HKCA 590

On Appeal From [2022] HKCFI 1689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 395 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1045 OF 2019)

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J U D G M E N T

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

1.  On 29 September 2022, the applicant took out a summons to reapply for extension of time to appeal against (a) the decision of Deputy High Court Judge KW Lung (“the Judge”) dated 23 June 2022 ([2022] HKCFI 1689)(“the Leave Decision”) refusing her application for leave to apply for judicial review, and (b) the Judge’s subsequent decision on 11 August 2022 refusing an extension of time to appeal against the Leave Decision ([2022] HKCFI 2334)(“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 8 April 2019 (“the Board’s Decision”) dismissing her appeal and confirming the decision of the Director of Immigration (“the Director”) dated 11 January 2018 rejecting the applicant’s non‑refoulement claim (“the Director’s Decision”).

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Indonesia.  She last entered Hong Kong in 2015 as a foreign domestic helper.  Her employment was prematurely terminated on 23 February 2016, but she overstayed.  On 19 April 2016, she surrendered to the Immigration Department.  On 8 September 2016, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by (a) her husband, Masdi because she took the initiative to divorce him; and (b) the debt collector because she failed to repay the debt borrowed by Masdi using the applicant’s name.  Details of the applicant’s claim were summarised by the Judge at [4] ‑ [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non‑refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  On 22 January 2018, the appealed against the Director’s Decision to the Board.  On 13 November 2018, the applicant attended an oral hearing before the Board but elected not to give evidence.[5]

7.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s findings were concisely summarised by the Judge at [9] ‑ [10] of the Leave Decision:

“9. The Board assessed her evidence and found that her evidence within her knowledge was a truthful account [41]. However, there was hearsay evidence, which could not be relied upon for the facts. In any event, the Board accepted that she had been subjected to domestic violence whilst she was in Indonesia by her husband. On the totality of her evidence, the Board was not persuaded that she would face a real risk of being harmed or killed by the loan-shark upon return [61] nor would she be subjected to being harmed or killed by Masdi [64].

10.   Thus, the Board rejected the applicant’s claim and dismissed her appeal.”

THE JUDGE’S DECISION

8.  On 17 April 2019, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.  No grounds were given in support of her application.  As the applicant did not request for an oral hearing, the Judge considered and determined her application on paper.

9.  By the Leave Decision, the Judge refused to grant the applicant leave to apply for judicial review. His reasons were stated at [13] ‑ [19] of the Leave Decision:

“13. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. 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.’

16. There is no valid ground from the applicant to challenge the Board’s Decision. The adjudicator had considered her evidence and, for the reasons that he had given, found that she was not subjected to any real risk of harm from either the loan‑shark or Masdi.

17. 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.

18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

10.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.

11.  On 18 July 2022, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was 11 days late with her intended appeal.  In her affirmation, she contended that she failed to receive the Leave Decision.

12.  On 11 August 2022, the Judge dismissed the applicant’s application, holding that the applicant had no valid ground to challenge against the Board’s decision and she failed to point out any error in the Leave Decision.  As there was no realistic prospect of success in her intended appeal, her application for extension of time to appeal was refused.

THIS APPLICATION

13.  By a summons and a supporting affirmation filed on 29 September 2022 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision and the EOT Decision.

14.  In her summons, the applicant merely stated:

“PLEASE EXTEND TIME FOR ME TO APPEAL BECAUSE I FAILED TO APPEAL AS I DID NOT GET THE HIGH COURT LETTER ON TIME. I APPLIED TO EXTED TIME TO THE HIGH BUT THE HIGH COURT DID NOT EXTEND.” (sic)

15.  In her supporting affirmation, the applicant disagreed with both the Leave Decision and the EOT Decision and she complained that the Judge did not want to listen about her country’s problem.  She further asserted that contrary to the Board’s views, it was not possible to ask for help from the authorities in her country.  She also complained about the lack of legal representation and that she had no knowledge in law.  She asserted that all officers in Hong Kong wanted to return all asylum seekers to their own country and as the High Court did not help them, she wanted to appeal against the Judge’s decisions.

16.  Pursuant to the directions of the Registrar of Civil Appeals dated 29 September 2022, the applicant lodged her written submissions on 13 October 2022.  In those submissions, she repeated the procedural history of her non-refoulement claim, claiming that her enemies would kill her upon refoulement.  She further complained that there were “many error of process” and the Director and the Board “did not consider [her] claim at all”.  She also asserted that she is “writing because the court himself may be can find any good ground which one [she] do not know” (sic).

DISCUSSION

17.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

18.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

19.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

20.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

21.  The applicant’s delay of 11 days is not insignificant.  She produced no evidence to support her bare allegation that she failed to receive the Leave Decision and the sealed court order.  From the court record, the Leave Decision was sent to her last known address on 23 June 2022 and was not returned undelivered.  In any event, for present purposes, we will focus on the merit of her intended appeal.

22.  In our view, the present application is devoid of merit.  Her allegations are all vague, bare and general in nature.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, she fails to specifically identify any error in the Leave Decision.  Clearly, her assertions are not proper grounds of appeal.  Her intended appeal is a nonstarter.

23.  There is also no merit in the applicant’s complaint in relation to her lack of legal representation or legal knowledge.  Insofar as this complaint relates to her appeal before the Board, she did not raise this ground in her application for leave to apply for judicial review, and should not be permitted to raise this new ground for the first time in the Court of Appeal.  See: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Insofar as this complaint relates to her application for leave to apply for judicial review or the present application, there is no legal basis for any contention that she was or is entitled to legal representation at either stage of the proceedings.  See: Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.

24.  In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable grounds of appeal against the Leave Decision.  In particular, as the applicant did not request for any oral hearing, it is open for the Judge to consider her application for leave to apply for judicial review on paper.  The Judge had considered the facts of her case in detail and we agree with the Judge’s observations. There is plainly no basis to disturb the Leave Decision.

25.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

26.  For the above reasons, the application for extension of time to appeal is refused, and the applicant’s summons taken out on 29 September 2022 is dismissed.