RE SURTINI

CAMP 540/2022, [2024] HKCA 618

On Appeal From [2022] HKCFI 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 540 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2554 OF 2018)

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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.  By a summons filed on 19 December 2022, the applicant applied to this Court for “Renewal my Application for time Extension for my Notice of Appeal against the Order of the High Court on 10-NOV-2022” (sic).  Deputy High Court Judge KW Lung (“the Deputy Judge”)  on 10 November 2022 ([2022] HKCFI 3252)  (“the EOT Decision”)  refused to grant the applicant an extension of time to appeal against an earlier order of the Deputy Judge dated 28 March 2022 ([2022] HKCFI 831)  (“the Leave Decision”)  refusing leave to apply for judicial review.

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 22 October 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 26 February 2018 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the papers, 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 as a visitor on 21 May 2014 and was permitted to remain till 20 June 2014.  She did not leave and overstayed.  On 6 July 2015, she was arrested by the police.  On 15 July 2015, she was convicted of the offence of breach of condition of stay by overstaying and sentenced to six weeks’ imprisonment, suspended for three years.  By way of a written representation on 20 July 2015, she lodged a non-refoulement claim on the basis that if refouled, she would be harmed or killed by her husband Iskarnadi as her husband physically abused her and demanded her to pay him 10 million Indonesia rupiah before he could agree to a divorce.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

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

6.  The applicant appealed against the Director’s Decision to the Board.  She attended an oral hearing before the Board on 6 September 2018 and answered the Board’s inquiries.  The Board dismissed her appeal on 22 October 2018 and confirmed the Director’s Decision.  The Board found that the applicant gave inconsistent evidence on her alleged divorce with her husband.  Having considered the totality of her evidence, the Board accepted that the applicant experienced domestic violence in the past, but did not accept that there would be a real risk of her facing threat, violence or harm upon her return to Indonesia.  In any event, the Board considered that internal relocation was a viable option and state protection would be available to the applicant.  Accordingly, the applicant failed to substantiate her claim and the Board dismissed her appeal.

The Leave Decision

7.  On 13 November 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not advance any ground of review and only stated in her Form 86 and supporting affirmation that she would be killed if she was to return to Indonesia.  As the applicant did not request any oral hearing, the Deputy Judge considered her application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in details at [12] - [18] of the Leave Decision:

“12. 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).

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

14. 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.’

15. There is no valid reason from the applicant to challenge the Board’s Decision.

16. 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.

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

CONCLUSION

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

The EOT Decision

9.  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.

10.  On 21 April 2022, the applicant applied by summons together with a supporting affirmation for an extension of time to appeal against the Leave Decision.  In the present case, the original deadline for the applicant to appeal against the Leave Decision fell on 11 April 2022.  Due to closure of the High Court Registry during the General Adjournment Period (arising the COVID-19 Pandemic)  from 7 March 2022 up to 11 April 2022, the deadline for the applicant to appeal against the Leave Decision was automatically extended to 12 April 2022.  Accordingly, she was nine days late for her intended appeal.

11.  In his decision dated 22 June 2022, the Deputy Judge was wrong in discounting the General Adjournment Period in the computation of time for appeal and in determining that the applicant’s summons filed on 21 April 2022 was within time.  In any event, the applicant did not file her notice of appeal by 6 July 2022 as directed by the Deputy Judge in his decision dated 22 June 2022.

12.  On 17 August 2022, the applicant filed another summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  The Deputy Judge mistakenly treated that the application was taken out in circumstances where the applicant had failed to issue the originating summons after leave had been granted to apply for judicial review.  On 25 August 2022, the Deputy Judge made an unless order that unless the applicant took out an originating summons for judicial review within 14 days of the service of that order, her application was deemed to have been abandoned.  The order dated 25 August 2022 was subsequently rendered as a nullity by the Deputy Judge in the EOT Decision.

13.  On 19 September 2022, the applicant filed a summons (“the EOT Summons”)  as her “Originating Summons file for my application to follows the High Court Order on 25-Aug-2022” (sic).  In her supporting affirmation filed on the same day, the applicant asked for an extension of time to file her notice of appeal.  She also explained that she did not did not understand the court procedure and her English skills were limited.

14.  By the EOT Decision, the Deputy Judge treated the EOT Summons as another application for extension of time to appeal against the Leave Decision.  As the applicant was not able to show that she had a realistic prospect of success in her intended appeal against the Leave Decision, the Deputy Judge refused to extend time for her intended appeal and dismissed her application.

The Present Application

15.  By a summons and a supporting affirmation both filed on 19 December 2022, the applicant applied for leave to appeal against the EOT Decision. In her supporting affirmation, she stated that she disagreed with the Director’s Decision.  She did not point to any errors in the Leave Decision or the EOT Decision.

16.  Pursuant to the directions of the Registrar of Civil Appeals dated 19 December 2022, the applicant lodged her written submissions on 3 January 2023.  In those submissions, the applicant asserted that she disagreed with the Director’s Decision and the Board’s Decision and did not think her case was determined fairly.  She contended that it was not easy for her to appeal against the decision as she did not know thoroughly how her case was determined.  She complained that she was not provided with legal and language assistance and that there had been procedural unfairness in the decisions reached.  She further complained that she was not fully informed of her rights and was not given the opportunity to be heard with assistance.

Discussion

17.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

18.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

19.  Given the applicant failed to provide any cogent explanation for her delay in any of her summonses or supporting affirmations, the court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

20.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

21.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  Her complaints are general and bare assertions without any specific particulars, elaboration or evidence in support.  They are complaints targeted at the Director and the Board.  They do not constitute viable grounds of appeal.  The intended appeal must fail on this basis alone.

22.  In any event, the allegations in her written submissions are wholly without merit.  It is trite that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as she desires: Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  Further, in the present case, all the court documents, including the summonses, the supporting affirmations, and the written submissions in support of this intended appeal, were written in English.  It shows that either the applicant is herself conversant with the English language or she has access to language assistance of her own if she finds it necessary.  It is therefore clear that the applicant was not in any way prejudiced.

23.  Furthermore, it is well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  In any event, the assessment of her non-refoulement claim by the Board and the consideration of her application for leave to apply for judicial review by the Deputy Judge were thorough and fair.  We consider that a high standard of fairness has been achieved in the overall process of the determination of her non-refoulement claim.  Accordingly, there is no merit in her intended appeal.

24.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 19 December 2022 dismissed.