RE SRI MARTUTI

CACV 110/2022

[2022] HKCA 1054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 110 OF 2022

(ON APPEAL FROM HCAL 543 OF 2019)

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J U D G M E N T

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Hon Chu JA (giving judgment of the court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”) set out in the Form CALL-1 dated 16 March 2022 ([2022] HKCFI 741) refusing to grant an extension of time and dismissing her application for leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 24 September 2018 refusing the applicant’s request to re-open her appeal against the decision of the Director of Immigration (“the Director”) dated 21 February 2018 as her appeal had been disposed of on 11 July 2018 in consequence of it being withdrawn by her.

3.  The applicant is a national of Indonesia. She arrived in Hong Kong to work as a foreign domestic helper on 22 November 2012. After her contract was prematurely terminated on 10 December 2012, she did not depart and has overstayed since 25 December 2012. She was arrested on 3 April 2013. By a written representation dated 10 March 2014, she lodged a non-refoulement claim on the basis of her fear of being sold as a prostitute or killed by loan sharks if she did not repay the loan to her creditor when she returned to Indonesia. The facts of the applicant’s claim were set out in detail in the Director’s decision and summarised by the Judge at [1] to [2], [13] to [17] in the Form CALL-1.

4.  By a Notice of Decision dated 21 February 2018, the Director rejected the applicant’s claim., having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] grounds.

5.  The applicant appealed the Director’s Decision to the Board on 28 February 2018. By a letter dated 4 June 2018, which was forwarded to and received by the Board on 5 June 2018, the applicant requested to withdraw her appeal and to discontinue her non-refoulement claim, for the reason that she was married and had submitted an application for dependant visa. She also stated that she was only pursuing her application for a dependant visa under the sponsorship of her husband.

6.  On 22 June 2018, the Board wrote to the applicant acknowledging receipt of her letter. The letter also informed the applicant that unless she informed the Board otherwise, the Board would presume that:

(1)  She was applying to withdraw her appeal against the Director’s Decision;

(2)  She considered it safe for her to return to Indonesia; and

(3)  She understood the consequences the proposed withdrawal (i.e., once the withdrawal is confirmed, her appeal will be dismissed and the Director’s decision in the Notice will be confirmed; and her appeal would be disposed of and finally determined by the Board; and no further action will be taken by the Board in relation to her appeal).

7.  The letter further advised the applicant to seek independent legal advice on the consequences of her proposed withdrawal of appeal and that if she failed to reply on or before 29 June 2018, the Board would consider approving her application for withdrawal.

8.  No response was received by the Board from the applicant. Accordingly, on 11 July 2018, the Board directed that the applicant’s appeal was withdrawn, and informed the applicant that her appeal had been disposed of and finally determined by the Board, and no further action would be taken by the Board in respect of her appeal. In considering the request to withdraw the appeal, the Board had taken into account all available information before it and was satisfied that the application to withdraw her appeal was freely sought, and the applicant understood the consequences of the withdrawal and that she considered it was safe to return to Indonesia.

9.  The applicant’s application for a dependant visa was unsuccessful. On 20 September 2018, the applicant wrote to the Board requesting to reopen her appeal against the Director’s decision, stating that her problem in her country still continued.

10.  By letter dated 24 September 2018, the Board informed the applicant that no further action would be taken by the Board since, upon her withdrawal of the appeal, her appeal had been disposed of and finally determined.

11.  On 26 February 2019, the applicant filed her Form 86 to apply for leave to apply for judicial review against the Board’s decision. Under Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A, 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. The Judge took the date of the Board’s final disposal of the appeal (i.e., 11 July 2008) as the date of the decision challenged by the applicant. The applicant’s application was accordingly late for four and a half months.

12.  The applicant’s grounds for relief were summarised by the Judge at [22] of the Decision as follows:

(1)  Procedural Impropriety: Failure to properly apply paragraph 2 of the UN Committee against Torture General Ground No. 2 whereby a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective.

(2)  Procedural Impropriety/Irrationality: Failure to give reasons for assessment of BOR 3 risk and/or sufficient basis to support the conclusion of lack of BOR 3 risk.

(3)  Error/Misdirection in law: Failing to take into account the psychological strain and threats to the applicant.

(4)  No sufficient basis to conclude that the applicant would not be at risk of being subjected to torture and/or CIDTP on being refouled.

13.  The Judge heard the application at an oral hearing on 23 February 2022. By his decision given on 16 March 2022, the Judge refused to grant an extension of time and dismissed the application for leave to apply for judicial review. The Judge held that the grounds relied on by the applicant to be devoid of merits and gave his reasons at [29] and [30] of the Form CALL-1 as follows:

“29. There is a total lack of factual or evidential basis to support any of these grounds. These grounds are challenges to the Director’s finding of fact which is not open to the Applicant unless the finding is vitiated by error of law, procedural unfairness or irrationality. No such argument has been advanced.

30. Having rigorously examined the Notice, the papers and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The immigration officer assessed the Applicant’s harm and risk on the basis of her evidence and objective COI. It must be on that basis that the Board upheld the Director’s finding that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. These are findings of fact which are exclusively within the province of the decision maker, ie the Director, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court was satisfied that the immigration officer made no error of law and committed no procedural unfairness in reaching the decision in the Notice; and neither did the Board when confirming the Director’s decision in the Notice. The Director’s decision in the Notice and the Board’s Decision to allow the withdrawal and to confirm the decision of the Director in the Notice did satisfy the enhanced Wednesbury test. They were not Wednesbury unreasonable or irrational. The decisions were utterly without fault. The Applicant’s grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.”

14.  The Judge concluded at [32] of the Form CALL-1 that:

“The Applicant’s delay was substantial and she could offer no reasonable explanation for the delay. Her intended judicial review has no prospect of success. To allow her to proceed to challenge the Decision when there is no prospect of success is by itself an abuse of legal process and will occasion prejudice to the intended respondent. Accordingly, her application for leave to apply out of time will not be given and her application for leave to apply for judicial review is refused.”

15.  On 12 April 2022, the applicant filed a Notice of Appeal to appeal the Judge’s decision. The Notice of Appeal contained the following grounds of appeal:

(1)  The Board and the Director failed to comply with their duty to make sufficient inquiries into the country of origin conditions and adopted a passive approach in contravention of the high standards of fairness.

(2)  The Board and the Director failed to take relevant considerations or took into account irrelevant considerations. Her life would be in danger and threatened by her enemies and she would be subject to severe mental distress as a result of being targeted by her enemies if she were to return to Indonesia.

(3)  Although her claim might be private and personal, it was her real claim and she would face risk of harm if refouled.

16.  The applicant had also put in a written submission on 6 June 2022, the content of which was the same as the grounds of appeal in the Notice of Appeal.

17.  We heard the appeal on 6 July 2022. During the hearing, the applicant stated that if she was allowed to re-open her appeal, she would seek help from NGO.

18.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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.

19.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

20.  For the reasons set out below, we are of the view that the appeal has no merits:

(1)  Under section 37ZTA(2) of the Immigration Ordinance, Cap. 115, an appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Board and no further notice of appeal may be filed in relation to the decision. As noted above, the Board had confirmed with the applicant her intention to withdraw her appeal and she understood the consequences of the withdrawal. The Board was therefore entitled to conclude that the withdrawal was freely sought and to approve the withdrawal. In the circumstances, the Board cannot be faulted for taking the view that no further action could be taken since the appeal had been withdrawn.

(2)  We are therefore in agreement with the Judge that the Board’s decision to regard the appeal as withdrawn is not erroneous in law or irrational. Nor is there procedural irregularity or unfairness in the decision making process.

(3)  The complaints in the Notice of Appeal and the written submission against the Board or the Director are vague and general assertions and not supported by particulars.

(4)  Further, while the focus of an appeal is the Judge’s decision, the applicant has not pointed to any error in the Judge’s decision. All the grounds of appeals are directed at the Director and the Board. We have, in any event, examined the Judge’s decision and do not see any basis for interfering with his conclusion that it would be futile to extend the time for applying judicial review.

21.  Accordingly, we dismiss the appeal.