RE SITI HAYANI

CACV 54/2022, [2023] HKCA 559

On Appeal From [2022] HKCA 677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2022

(ON APPEAL FROM HCAL 1202 OF 2019)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  On 28 June 2022, the applicant filed a Notice of Motion out of time to apply for leave to appeal to the Court of Final Appeal against the judgment of the Court (Au JA and Lisa Wong J) of 13 May 2022 (“the Judgment”) ([2022] HKCA 677). In the Judgment, the Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge P Li dated 18 January 2022, refusing her application for leave to apply for judicial review ([2022] HKCFI 138).

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 the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 10 June 2022.  Accordingly, the applicant was late for 18 days in taking out her application for leave to appeal to the Court of Final Appeal.

5.  Although 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 if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad[2021] HKCA 482 at [9] and the authorities cited therein.  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 am would like to inform to the Court of Final Appeal. Director of Immigration and The Torture Claim Appeal Board has significantly relied on the source of news which is not officially recognized or it simply hearsay. They have also relied on some cases which are fairly outdated considering information has resulted in them making groundless speculations that it is safe for me to return back to Indonesia. Its towards to my life.” (sic)

7.  In her supporting affirmation, she only alleged:

“Affirmation for leave to apply time extension for my Notice of Motion. I did not aware of my deadline to file my Notice of Motion.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 12 July 2022.  In those submissions, she alleged that there had been a lack of language assistance and also a lack of sound judgment and fairness throughout her non-refoulement claim process.

9.  At the outset, it is noted that a delay of 18 days is substantial and ignorance of the deadline for filing her Notice of Motion is not a good reason for her substantial delay.

10.  More importantly, her intended application is wholly without substance.  The allegations made in her Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence. She did not identify any specific error in the Judgment with sufficient particulars.  Accordingly, her allegations are not viable grounds of appeal.  Furthermore, it is trite a non-refoulement claimant is not entitled to free legal representation at all stages of the process and 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: Re Zunariyah[2018] HKCA 14 at [18]; Re Zahid Abbas[2018] HKCA 15 at [11] and Re Tariq Farhan[2018] HKCA 17 at [11].  The applicant was assisted by interpreters in her proceedings during the oral hearings before the Board, the Deputy Judge and this Court.  All of the Court documents filed by the applicant in this Court and the Court below were in English which demonstrated that she was proficient in the English language or had access to language assistance.  Accordingly, her complaints in relation to the lack of language assistance must fail and her intended appeal plainly has no merit.

11.  In any event, even taking her case at its highest, her allegations are fact‑specific and do not relate to any question of great general or public importance.

12.  The applicant has therefore 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.

13.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion is dismissed.

CACV 54/2022

[2022] HKCA 677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2022

(ON APPEAL FROM HCAL 1202 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge P Li (“the Deputy Judge”)  set out in the Form CALL-1 dated 18 January 2022, by which the Deputy Judge refused her application for leave to apply for judicial review ([2022] HKCFI 138)  (“the Leave Decision”).

2.  The intended judicial review is to challenge against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 26 April 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 25 June 2018 (“the Director’s Decision”)  rejecting her non-refoulement claim.

Background

3.  The applicant is a national of Indonesia.  She last arrived in Hong Kong on 1 March 2017 and was permitted to remain as a visitor until 31 March 2017.  She overstayed since 1 April 2017 and surrendered to the Immigration Department on 6 April 2017.  On 12 July 2017, she raised a non-refoulement claim on the basis that her life would be endangered by her creditor due to a loan dispute which was caused by her husband.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [3] - [6] of the Leave Decision.

4.  By a Notice of Decision dated 25 June 2018, 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]. Taking into account all relevant circumstances, the Director considered that her non-refoulement claim was unsubstantiated.

5.  On 26 June 2018, the applicant appealed against the Director’s Decision to the Board.  The applicant attended the hearing before the Board on 1 February 2019 with the assistance of an Indonesian interpreter.  The Board dismissed her appeal on 26 April 2019.  Having assessed the evidence, the Board considered that there were inconsistencies in her evidence.  The Board was not satisfied that she had ever been adversely approached or threatened with harm or death in connection with the unpaid debts of her husband or for any other reason.  The Board also did not accept that the applicant would face a real chance of harm of any type in Indonesia in the reasonably foreseeable future for any of the reasons claimed.  Accordingly, the applicant failed to substantiate her claim and her appeal was dismissed.

The Leave Decision

6.  On 6 May 2019, the applicant filed a Form 86 and a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  She did not provide any ground of review in her Form 86 or supporting affirmation.  By way of two letters to the Court respectively dated 26 May 2021 and 18 August 2021, the applicant claimed that there had been procedural unfairness in the process before the Board given the lack of language assistance and that the Board’s Decision was irrational and unreasonable.  She also alleged that the Board merely dismissed her claim in terms of state protection but had failed to take into account the seriousness of bribery in Indonesia.  She further complained that the Board relied significantly on the source of news which was not officially recognised or was hearsay.

7.  As the applicant failed to attend the hearing before the Deputy Judge on 8 November 2021, the Deputy Judge considered her application on paper.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [10] - [16] of the Leave Decision:

“Judicial Review

10. The applicant filed the leave application on 6/5/2019. In her affirmation, she did not specify any error in the TCAB decision.

11. This court fixed a hearing on 8/11/2021. The applicant did not attend. The notice of hearing was sent to her last known address as recorded in the Form 86. There was no returned mail. She had written to this court on 26/5/2021 and 18/8/2021 stating the grounds of her leave application. The latter was in response to the court’s invitation to update her particulars.[5] This court was satisfied the address was correct and proceeded to deal with her leave application on paper.

12. The gist of her complaint according to her letters was that the hearing bundle was in English. It was served on her shortly before the TCAB appeal. She was unable to find interpretation assistance. The TCAB relied on news reports which were not authentic and hearsay in nature. The TCAB failed to consider the serious bribery problem in Indonesia.

13. The adjudicator disbelieved the applicant’s evidence. The adjudicator rejected that there was an unpaid debt of her husband. In the circumstances, the applicant’s claim failed on credibility. There was no need for the adjudicator to consider any COI or news reports as the Director did.

14. The most important documents in the hearing bundle were the decision of the Director and the NCF. They were compiled or explained to the applicant with the assistance of an interpreter through the DLS. The applicant should have a reasonable understanding of the content. The applicant could communicate with this court in English. Her Form 86 and supporting affirmation were in English. This indicated that she could arrange language assistance herself. In any event, she had responded to the questions of the adjudicator. There was no record that she could not understand the proceedings.

15. The adjudicator had analyzed her evidence in detail. There were fundamental inconsistencies which undermined her credibility. She was given ample opportunities to explain. The adjudicator was not satisfied with her reasons. I agree with the findings of the adjudicator. In my view, there is no error of law and procedure. Given the evidence submitted by the applicant, I find the TCAB decision reasonable.

Conclusion

16. In my judgment, the leave application is not reasonably arguable. There is no reasonable prospect of success.  I refuse leave for judicial review.”

The Appeal

8.  On 27 January 2022, the applicant filed a Notice of Appeal and an affirmation in support of her present appeal against the Leave Decision.  However, she did not give any ground of appeal in her Notice of Appeal.  In her supporting affirmation, she only claimed that the Board and the Director disregarded her dangerous situation.

9.  Pursuant to this Court’s directions dated 4 March 2022, the applicant lodged her skeleton argument on 29 March 2022.  In those submissions, the applicant alleged that the Director and the Board had been procedurally unfair, irrational and unreasonable.  However, the applicant failed to condescend upon particulars as to her allegations.

10.  We heard the appeal on 26 April 2022.  A Bengali interpreter was present to provide language assistance.  During the hearing, the applicant confirmed that she had nothing further to add to her written materials.

Discussion

11.  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].

12.  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’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 leave to apply 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.

13.  Nowhere in her Notice of Appeal, supporting affirmation or skeleton arguments did the applicant identify any error in the Leave Decision.  It is well-established that 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: see Nupur Mst v Director of Immigration, supra, at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].  As the applicant failed to provide any ground of appeal, the appeal ought to be dismissed on this basis alone.

14.  Further, the applicant’s contentions are all too vague and general.  General and bare assertions that she would face harm upon return to her home country do not constitute proper grounds of appeal.  In any event, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration, supra, at [14].  In the present case, we do not see any error of law or procedure in the proceedings before the Board in relation to the applicant’s non-refoulement claim. There is no basis to disturb the Leave Decision.

15.  For the above reasons, the applicant’s appeal is without merit.  Accordingly, we dismiss the appeal.

The applicant acting in person