RE JAMILAH

CACV 188/2021

[2023] HKCA 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 188 OF 2021

(ON APPEAL FROM HCAL NO. 290 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court)  :

I. Leave to appeal to the Court of Final Appeal

1.  On 21 September 2021, this Court handed down a decision dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 25 May 2020 in which he refused to grant extension of time for leave to the applicant to apply for judicial review.

2.  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our decision. We will not repeat them here.

3.  The applicant now applies, by a notice of motion filed on 21 November 2022, for leave to appeal against our decision to the Court of Final Appeal.  The applicant stated in her notice of motion in summary the following points :

‘ 1-The Learned Judge were wrong…for not having applied the principle of irrational to the decision made by the Director of Immigration..…

2-The Learned Judge were wrong… He was required to give reason justifying the decision…’

4.  The applicant stated in her affirmation in summary the following points :

‘ …

2.  I am unrepresented and have no means to seek any proper legal advice.

3.  However, I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for court of appeal.

4.  I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal.’

5.  The applicant did not lodge written submissions by the stipulated deadline pursuant to the directions of the Registrar of Civil Appeals dated 21 November 2022.

6.  On 13 February 2023, the Appeal’s Registry received a letter from the applicant stating that she wished to withdraw her notice of motion.  She stated that she wanted to go back to Indonesia.  She stated that her problem is solved.  She stated that it was safe for her to return.

II.      Our view

7.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (‘Ordinance’)  leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

8.  The matters stated by the applicant in her notice of motion and affirmation do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the Ordinance. Nor is there any such question apparent to us from the matters she has raised in her notice of motion and affirmation. 

9.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b)  of the Ordinance.

III.     Disposition

10.  For these reasons, we will in any event dismiss the notice of motion filed on 21 November 2022 notwithstanding the applicant’s request to withdraw her notice of motion.

Applicant, unrepresented, acting in person

CACV 188/2021

[2021] HKCA 1368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 188 OF 2021

(ON APPEAL FROM HCAL NO. 290 OF 2018)

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________________________

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I.  Background

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 25 May 2020.  The Judge refused her application for an extension of time for leave to apply for judicial review of the Torture Claims Appeal Board (‘the Board’)’s decision dated 29 May 2017 and dismissed her application for leave to apply for judicial review.

2.  The applicant confirmed that she consented to this appeal being disposed of on paper.

3.  The applicant did not lodge any skeleton argument.

II.  The applicant’s non-refoulement claim

4.  The applicant is an Indonesian national and is now 39 years old.  Between 2009 and 2013, she worked as a domestic helper in Hong Kong.  She last arrived in Hong Kong on 3 August 2013 with permission to work as a domestic helper until the expiration of her employment contract on 24 February 2015 or within two weeks of its early termination.  On 7 August 2013, her employment contract was prematurely terminated due to misconduct.  The police arrested the applicant for theft, for which she was subsequently convicted and sentenced to prison for eight months on 6 September 2013.

5.  She lodged her non-refoulement claim form on 20 June 2016 and underwent a screening interview on 11 July 2016 with legal representation from the Duty Lawyer Service.

6.  The applicant’s claim was set out in detail in the Director of Immigration’s decision at [5] to [7] (‘the Director’s 1^st Decision’)  and in the Board’s decision at [1] and [25] to [29] (‘the Board’s Decision’).  The claim was summarised by the Judge at [1] of the CALL-1 Form.  In short, she claims if she returned to Indonesia, she would be harmed or killed by her parents and/or the man she was arranged to marry for refusing to enter into the arranged marriage.

III.  The Director’s Decisions

7.  In his 1^st Decision, the Director rejected the applicant’s non-refoulement claim on the torture risk, BOR 3 risk, and persecution risk.  The Director did not accept that there was any real risk of harm upon her return to Indonesia.  This was further negated by the availability of state protection and the fact that there were alternative internal relocation options.  The Director, therefore, concluded that the applicant failed to establish her entitlement on any of the aforementioned applicable grounds.

8.  After the Director’s 1^st Decision had been given, the Director wrote to the applicant on 7 April 2017, requesting that she provide additional facts, if any, which she considered relevant to her potential BOR 2 risk grounds, on or before 21 April 2017.  However, she failed to provide any additional facts or evidence supporting any potential BOR 2 risk grounds.

9.  On 24 April 2017, in his Notice of Further Decision (‘the Director’s 2^nd Decision’), the Director, nevertheless, considered the applicant’s potential BOR 2 risk.  The Director, having reviewed the claim, in the absence of any additional information, found that the applicant failed to establish her entitlement under the BOR 2 ground.

IV.  The Board’s Decision

10.  The applicant appealed the Director’s 1^st and 2^nd Decisions to the Board.  The Board heard the appeal on 27 April 2017, shortly after the Director’s 2^nd Decision. During the appeal, the applicant gave evidence and answered questions from the Board with the assistance of an interpreter. 

11.  In its decision, the Board found the applicant’s evidence as to her claim inconsistent and implausible.  The Board was not satisfied that the applicant was a reliable witness and concluded that her non-refoulement claim failed on all the applicable grounds (torture risk, BOR 3 risk, persecution risk and BOR 2 risk).

V.  The intended judicial review

12.  On 23 February 2018, the applicant filed her notice of application (out of time)  for leave to apply for judicial review pursuant to Order 53, rule 3(2)  of the Rules of the High Court, together with a supporting affirmation.  The applicant did not put forward any ground for seeking relief.  In her supporting affirmation, she merely stated that ‘the decision is unfair and unreasonable’ without providing any particulars or elaboration.

VI.  The Judge’s decision

13.  The applicant did not request an oral hearing before the Judge.  He, therefore, dealt with the application on paper.

14.  By his decision dated 25 May 2020, the Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason for her delay, he refused to extend time and, accordingly, dismissed her application.  The Judge’s reasons were set out in the CALL-1 Form at [13], [17]-[18].  The Judge held that the applicant had not provided any explanation for the six months’ delay in bringing the application and further she had not put forward any proper ground for her challenge other than just claiming that the Board’s Decision was unfair and unreasonable without any particulars or elaboration.

VII.  The applicant was granted an extension of time to file her notice of appeal

15.  On 2 June 2020, the applicant issued a summons for leave to appeal against the Judge’s decision.

16.  On 8 September 2020, the Judge, considering the leave to appeal summons, observed that the Court of Final Appeal on 14 July 2020 recently ruled in H v Director of Immigration [2020] 4 HKC 454; [2020] HKCFA 22 that a refusal of an extension of time which leads inexorably to a decision to refuse leave to apply for judicial review is a decision from which an appeal lies as of right.  The Judge, therefore, extended time for the applicant to file her notice of appeal by 22 September 2020: Re Jamilah[2020] HKCFI 2158.

17.  By summons dated 13 January 2021, the applicant applied for a further extension of time to file her intended appeal.  She explained to the Judge that she could not read or understand the 8 September 2020 decision as it was in English, and she needed time to find someone who could explain the decision to her and advise her on the appeal procedure.  The Judge, on 22 April 2021, having accepted her reasons, granted her a further extension of time, allowing her to file her notice of appeal by 29 April 2021: Re Jamilah[2021] HKCFI 1134.

18.  The applicant filed her notice of appeal on 23 April 2021.

VIII.  The ground of appeal

19.  In her notice of appeal, the applicant stated the following ground of appeal, ‘I want to challenge the decision’.

IX.  Legal principles

20.  The general principles regarding an appeal in a non-refoulement judicial review case were recently summarised in Re Mohammed Asgar[2021] HKCA 1239 at [17]-[18]. 

21.  The Court has to consider whether time should be extended to an applicant to proceed with this application by considering the merits of his intended judicial review.

22.  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, and/or in the process by which the decision was made.

23.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge considering the grounds advanced by the applicant.  If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed.  This Court’s role is not to examine the Board’s Decision afresh as if it was a fresh application for judicial review.

X.  Our view

24.  No viable ground of appeal was put forward by the applicant. 

25.  It is incumbent on an applicant to point out with sufficient particularity the errors committed by the Judge in assessing the Board’s Decision.  The applicant failed to provide any particularised ground of appeal.

26.  Consequently, we are of the view that the applicant’s appeal is without merit.  We, therefore, see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed. 

Applicant, unrepresented, acting in person