RE KASIRAH

CAMP 268/2019

[2020] HKCA 771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 268 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 599 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 18 June 2020 ([2020] HKCA 468), this Court (Yeung VP and Chu JA) dismissed the applicant’s application for an extension of time to appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 25 June 2018 in HCAL 599/2017 refusing her application for leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 4 August 2017 dismissing her petition/appeal from the decision of the Director of Immigration (“Director”) given on 31 October 2016 rejecting her non-refoulement claim.

2.  By a notice of motion dated 26 June 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

(1)  The judges were wrong as a matter of law for failing to apply the principle of irrationality to the decisions made by the Director and the Board.

(2)  The judges were wrong as a matter of law for failing to apply the principle of procedural unfairness to the decisions of the Director and the Board which required them to give reasons justifying their decisions made.

(3)  The applicant would face hardship if she were to return to her home country and the Board had significantly relied on the source of news which is not sufficiently recognized or is simply hearsay.

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 26 June 2020, the applicant should lodge with the court her written submissions in support of the notice of motion on or before 10 July 2020.  The applicant failed to do so.

4.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  The grounds of appeal as set out in the notice of motion are vague and general accusations and none of them had pinpointed any error of law or other valid ground to challenge or reverse our judgment. Further, as set out at [7] of our judgment, the Board had provided detailed reasons in dismissing the applicant’s case and in gist, her case was premised on domestic violence without any state involvement and she had failed to establish her case on all applicable grounds. There is simply no merit in the applicant’s case.

7.  For the reasons that we gave in our judgment of 18 June 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

8.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her notice of motion.

The applicant, unrepresented, acted in person.

CAMP 268/2019

[2020] HKCA 468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 268 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 599 OF 2017)

_____________________

_____________________

___________________

J U D G M E N T

___________________

Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By a summons dated 18 October 2019 and filed on 25 October 2019, the applicant renewed her application for leave to appeal out of time against the decision given by Deputy High Court Judge Woodcock (“the Judge”) on 25 June 2018 refusing her application for leave to apply for judicial review.  The applicant’s previous application for an extension of time to appeal was refused by the Judge on 4 October 2019. 

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 4 August 2017, in which the Board confirmed the decision made by the Director of Immigration (“the Director”) dated 31 October 2016.  By the Decision of the Judge dated 25 June 2018 (“the Decision”), the applicant’s application for leave to apply for judicial review against the Board’s decision was dismissed. 

3.  Pursuant to the directions of the Registrar of Civil Appeals given on 30 October 2019, the applicant lodged her written submissions on 15 November 2019. 

4.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the application on paper without a hearing.

Background

5.  The applicant is a national of Indonesia.  She came to Hong Kong as a foreign domestic helper and worked as such between 2006 and 2014.  Her last contract commenced on 13 March 2014 but it was prematurely terminated on 9 April 2014.  The applicant did not depart within two weeks and overstayed from 24 April 2014.  She was arrested by the Immigration Department on 7 April 2016 for overstaying and working illegally.  On 16 June 2016, she lodged a non-refoulement protection claim on the basis that if she were to return to Indonesia, she would be harmed or even killed by her abusive husband due to domestic violence.

6.  By Notice of Decision of 31 October 2016, the Director dismissed the applicant claim on BOR 2 risk, BOR 3 risk, the torture risk and the persecution risk.

7.  The applicant appealed to the Board against the Director’s decision.  After the hearing on 27 June 2017, the Board dismissed her appeal on 4 August 2017.  The Board found the applicant’s evidence had obvious discrepancies and inconsistencies with what she mentioned in the screening interview with the immigration officer and her evidence was unreliable and not believable. The Board further found that even if she was telling the truth and had suffered injuries as described, she had not established torture as defined under section 37U(1) of the Immigration Ordinance and her alleged injuries did not meet the minimum level of severity to be defined as torture.  It was not established that she would face any genuine and substantial risk if refouled. In any event, internal relocation was a reasonable and viable option.  For the aforesaid reasons, the applicant’s case was rejected on all applicable grounds.

8.  On 7 September 2017, the applicant filed a Form 86 together with her supporting affirmation for leave to apply for judicial review against the Board’s decision.  In her supporting affirmation, she set out the background of her case and some articles / provisions under the International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance, Cap. 383, Basic Law and United Nations Convention Against Torture.  She also advanced 8 grounds in support of her intended challenge:

(1)  The Adjudicator failed to carry out sufficient research and inquiry into the Country of Origin information (“COI”) conditions of Indonesia and her case was dismissed upon unfair procedure.

(2)  The Adjudicator failed to take into account and put proper weight on the relevant COI, cherry-picked COI and relied on an outdated COI.  Therefore, the decision was Wednesbury unreasonable.

(3)  The Adjudicator failed to evaluate and make a finding of fact as to whether a consistent pattern of gross, flagrant or mass violations of human rights exist in Indonesia.  Therefore, the decision was unreasonable.

(4)  The Adjudicator failed to analyse and assess whether state protection was available in Indonesia and misdirected herself on the meaning of extended state protection.

(5)  The Adjudicator put weight on irrelevant, incorrect and inaccurate consideration and failed to put weight on facts and failed to draw inferences that were favourable to the applicant’s case.

(6)  The Adjudicator failed to call for psychological and psychiatric report of the applicant.

(7)  The Adjudicator applied an incorrect standard of proof.

(8)  Lack of legal assistance and representation.

The Judge’s Decision

9.  The Judge heard the case on 1 February 2018 and by her decision dated 25 June 2018, she decided to refuse leave for the applicant to apply for judicial review after giving due consideration to the decisions of the Director and the Board.  The reasons were duly set out at [12] to [17] of the Decision:

“12. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. She analysed material, claims and evidence with care. The applicant’s grounds and complaints are not made out. I find no substance in the eight grounds of this application.

13. There are eight grounds in this affirmation and none contain any particulars. Those include grounds 5, 6, 7 and 8. As an example, for ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation. For ground 7, the adjudicator certainly set out the correct standard of proof in his decision. There are no particulars here to illustrate where she has applied the incorrect standard. For ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. These grounds have no merits.

14. In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“COI”) information and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. Again particulars have not been given in relation to these grounds. She had no reason to go into detail considering the reason she dismissed the applicant’s appeal but nonetheless did consider State protection and internal relocation objectively. These grounds are not arguable.

15. Ground 3, a failure to evaluate and make a finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights, has no merits. Consideration of these concepts do not arise unless there is a substantial risk of a real personal chance the applicant will be tortured or ill-treated if refouled. In this case, the adjudicator made a finding there is no substantial risk or a real personal chance.

16. In addition, the applicant complains she was not given sufficient time to prepare for her appeal, the appeal bundle was in English, she was confused during the appeal and felt the hearing was unfair to her. I was satisfied the applicant had the assistance of an interpreter. There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the appeal. In any event, this application and this affirmation were made in English which casts doubt on this complaint.

17. I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.”

10.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appeal.  By the summons filed on 26 August 2019, she sought an extension of time to appeal against the Decision and there was a substantial delay of 13 months. 

11.  In the summons, she stated that she would advance a new sole ground for appeal.  In her supporting affirmation, she complained that the Decision was unfair as the Judge did not allow her to clarify her situation in Indonesia and to explain her case.  She also said that as an unrepresented litigant, she could not meet with the 14-day time limit in filing her appeal.

12.  By the decision dated 4 October 2019, the Judge refused to grant to the applicant an extension of time.  On the issue of delay, the applicant confirmed with the Judge that she had been staying in the same residential address save for the time when she was detained by the Immigration Department.  She just said she did not receive the Decision without offering any or any good reason to explain the substantial delay in taking out her application.  Further, despite the applicant indicated that she would advance a new ground of appeal in her summons, she was unable to articulate any ground at the hearing.  The Judge found no merit in her underlying application and there was no real prospect of success in her intended appeal.  Thus, the summons was dismissed accordingly.

The Renew Application

13.  By the summons filed on 25 October 2019, the applicant renewed the matter before us.  In her supporting affirmation, she merely repeated the content of her last affirmation.  In her written submissions, she quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submissions further referred to section 37ZT of the Immigration Ordinance, Cap. 115, and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and the accompanying evidence, as well as other relevant matters of fact within the Board’s knowledge. However, the applicant did not further elaborate how the section could assist her case.

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346. 

16.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  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 scrutinizing 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

17.  We are of the view that the delay of 13 months in taking out the summons for an extension of time to appeal against the Decision was substantial.  The applicant’s explanation of delay was far from satisfactory and we would not accept it as good reason for the substantial delay.

18.  Therefore, the applicant must satisfy the Court that the intended appeal has a real prospect of success before extension of time will be granted: see Re Ansar Muhammad[2018] HKCA 227.  

19.  We found no merit in the applicant’s case as none of the matter set out in the written submissions pinpoints any error of law of the Judge’s decision and they are not viable ground of appeal.   We found no substance in her written submissions as it just set out some general legal principles and cases relating to non-refoulement protection claim without elaborating and explaining how they may assist or further her case. 

20.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the Board’s Decision which is well based and without flaw.

21.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal. 

Conclusion

22.  The summons dated 18 October 2019 is dismissed accordingly.

23.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] The correct citation should be ST v Betty Kwan.