RE SALBIYAH

CAMP 130/2021

[2022] HKCA 477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 130 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 748 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.  On 4 January 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the judgment of this Court (Cheung and Au JJA) dated 24 November 2021 (“the Judgment”) ([2021] HKCA 1742). In the Judgment, we dismissed the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 7 September 2020, in which the Deputy Judge refused to grant extension of time to the applicant and dismissed her application for leave to apply for judicial review ([2020] HKCFI 2190) (“the Leave Decision”).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.  Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from. Thus, the deadline for filing the Notice of Motion ended on 22 December 2021. The applicant was therefore late for 13 days with her application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant. In deciding whether there are such good grounds, the Court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq& Another[2021] HKCA 83 at [4] and the authorities cited therein.

6.  In her Notice of Motion, the applicant stated:

“I would like to inform Court of Final Appeal. I am strongly opposed the decision made by the authorities. There is some error in law maker authorities and court as well. They are relied on web information and my previous facts while were favor to reject my claim. Its towards to my life still danger in my home land in Indonesia.” (sic)

7.  In her affirmation in support filed on 4 January 2022, she only stated that she was not aware of the time limit to file her Notice of Motion.

8.  Pursuant to the directions of the Registrar of Civil Appeal made on 4 January 2022, the applicant lodged her written submissions on 18 January 2022. In her written submissions, she claimed that her case had not been determined fairly by the Director of Immigration (“the Director”) and the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”). She alleged that she was deprived of the right to make full grounds of appeal given that the Court would not accept grounds written in her own language and that the lack of assistance provided to her was an error of law or procedure.

9.  As a start, although the applicant contended that she did not receive the Judgment, she gave no specific particulars or evidence in support of her contention. The Court record showed that the Judgment as well as the sealed Court order were posted to her last known address, which was the same address as provided in her Notice of Motion. The Judgment and sealed Court order were not returned as undelivered. As such, we do not accept her reason for delay in taking out this application.

10.  More importantly, the applicant’s intended appeal has no substance. None of the matters raised in her Notice of Motion or supporting affirmation has identified any specific error in the Judgment. General assertions of her fear to return to her home country simply do not constitute viable grounds of appeal. The matters raised in her Notice of Motion are all general and bare allegations unsupported by specific particulars or evidence. Clearly, they do not constitute proper grounds of appeal.

11.  As to the allegations raised in her written submissions regarding the lack of language and legal assistance, we had already considered and dealt with those arguments in the Judgment at [19] - [21] and the applicant did not identify any error in the Judgment with specific particulars. As such, her arguments are not viable grounds of appeal.

12.  In any event, the applicant’s contentions are also fact-specific and do not relate to any question of great general or public importance.

13.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO. We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO. It would be futile to extend time for the applicant to pursue a hopeless appeal.

14.  For these reasons, we refuse to grant the applicant extension of time for leave to appeal to the Court of Final Appeal and the Notice of Motion filed on 4 January 2022 is dismissed.

The applicant acting in person

CAMP 130/2021

[2021] HKCA 1742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 130 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 748 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  By a summons dated 28 April 2021, the applicant applied to this Court for “leave to appeal” against the order made by Deputy High Court Judge Bruno Chan (“Deputy Judge”)  dated 13 April 2021 refusing to grant to the applicant extension of time ([2021] HKCFI 890)  (“EOT Decision”)  to appeal against the Deputy Judge’s earlier order dated 7 September 2020 refusing to grant an extension of time to apply for leave to apply for judicial review and dismissing her application for leave to apply for judicial review ([2020] HKCFI 2190)  (“Leave Decision”).

2.  The intended judicial review was directed at the decision dated 17 May 2017 of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 9 August 2016 and 19 April 2017 rejecting her claim for non-refoulement protection (collectively “the Director’s Decisions”).

3.  Having considered the paper, we are of the view that it is appropriate to determine the summons without a hearing under 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 entered Hong Kong on 29 April 2008 to work as a foreign domestic helper but did not depart after her employment contract was prematurely terminated on 3 July 2011.  She overstayed and was arrested and referred to the Immigration Department for investigation, the applicant raised a torture claim which was later taken as a non-refoulement claim.

5.  The applicant’s claim was based on an alleged fear that if she were to return to Indonesia, she would be harmed or killed by her abusive husband and / or by her creditor for failing to repay her loan.  The factual details of the applicant’s claim were summarised by the Deputy Judge in [2] - [5] of the Leave Decision.

6.  By a Notice of Decision dated 9 August 2016 and a Notice of Further Decision dated 19 April 2017, the Director rejected the applicant’s non-refoulement claim.  His decisions covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].  Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from her husband and/or her creditor upon her return to Indonesia as low.  The Director considered that state protection would be available to the applicant and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available and reasonable.

7.  On 19 August 2016, the applicant lodged an appeal to the Board against the Director’s Decision dated 9 August 2016.  She attended an oral hearing on 24 April 2017 but decided not to answer any questions.  The Board dismissed her appeal on 17 May 2017 and confirmed the Director’s Decisions.  The Board found the applicant’s claim doubtful in the absence of any evidence from her during the hearing when she declined to corroborate and clarify her claim.  It further found that state protection was available and internal relocation viable.

The Leave Decision

8.  On 30 April 2018, the applicant filed a Form 86 and a supporting affirmation to apply for leave for judicial review of the Director’s Decision dated 9 August 2016 and the Board’s Decision.  No ground of judicial review was given in the Form 86 or supporting affirmation.  She also did not request for an oral hearing.

9.  By the Leave Decision of 7 September 2020, the Deputy Judge refused to grant extension of time to apply for leave for judicial review and dismissed her application for leave to apply for judicial review for the following reasons:

“13. As the last day of the three-month period for her to file her Form 86 fell on 17 August 2017, the Applicant was therefore 8 ½ months late with her application, and in considering whether to extend time, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 383.

14. In the Applicant’s case, a delay of 8 ½ months must be considered as very substantial and excessive, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent to her last reported address without being returned through undelivered mail, I do not see any good reason for her serious delay.

15. As for the merit, if any, of her intended application, as noted above the Applicant did not put forward any proper ground for her application, and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.

17. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her application.”

The EOT Decision

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the judge’s order 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.  On 17 November 2020, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  She is late for two months.

11.  By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal as a delay of two months must be considered as substantial and she had not provided any good or valid reason for her substantial delay.  As to her contention that she did not receive the Leave Decision as she had moved to a new residence, the Deputy Judge held that it was her duty to inform the authorities as soon as practicable if she had changed her address, and that she should bear the consequence of her failure to do so.  The Deputy Judge also noted that in the absence of any errors in the decision as identified by the applicant, there was no chance of success in her intended appeal.  Accordingly, the EOT Summons was dismissed on 13 April 2021.

The Present Application

12.  By a summons dated 28 April 2021, the applicant sought leave from this Court to appeal against the EOT Decision.  She did not put forward any viable grounds of appeal in the summons or the supporting affirmation dated 28 April 2021.  In her written submissions dated 17 June 2021, the applicant complained that there was a lack of legal representation and language assistance for her BOR2 assessment before the Director and that she had no understanding of the process or reasons and all acts of the authorities had been highly discriminatory and unfair to her.

Discussion

13.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we would treat the present application as a renewed application for extension of time to appeal.

14.  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 the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted: Re Farrukh Zaib[2020] HKCA 408 at [22].

15.  We consider the delay of almost two months to be substantial and the applicant had not provided any satisfactory explanation for the delay.  As repeatedly emphasised by this Court, it is the duty of a litigant to give the Court an address to which correspondence or notice can come to her attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant: Re Hasmi Rizwan Imran[2018] HKCA 439 at [15]; Said Umair v Torture Claims Appeal Board[2018] HKCA 82 at [9].

16.  As the applicant did not have any satisfactory explanation for her delay in bringing the intended appeal, 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].

17.  In assessing the merit of an intended appeal, the Court of Appeal would focus on the decision of the Deputy Judge and would 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].

18.  Nowhere in the summons dated 28 April 2021, the supporting affirmation and the written submissions dated 17 June 2021 did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  The intended appeal must fail on this basis alone.

19.  The arguments in her written submissions dated 17 June 2021 were new and not raised before the Deputy Judge.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below: Re Qadir Sher[2018] HKCA 160 at [11].  Therefore, the Court of Appeal will not entertain these new grounds.

20.  In any event, those grounds are devoid of merits.  It is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as she desires: see Cucun Fatimah v Torture Claims Appeal Board[2019] HKCA 1264 at [20].  The Court documents filed in this application and in the Court below were all in English.  It is thus clear that either the applicant was herself conversant with the English language or she had access to language assistance of her own if she found it necessary.  It is therefore clear that the applicant was not in any way prejudiced.

21.  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 had been achieved in the overall process of the determination of her non-refoulement claim.  Accordingly, there is no merit in her intended appeal.

22.  For the above reasons, the intended appeal has no prospect of success.  The application for extension of time to appeal is refused and the applicant’s summons dated 28 April 2021 dismissed.

The applicant acting in person