CAMP 413/2022
[2022] HKCA 1831
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 413 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 978 OF 2021)
________________________
BETWEEN |
| | YULIANI | Applicant |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Respondent |
________________________
Before: Hon Yuen and Chow JJA in Court
Date of Written Submissions: 19 October 2022
Date of Judgment: 23 December 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 6 October 2022, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 24 August 2021 refusing to grant her leave to apply for judicial review (“the Order”).
2. The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 11 June 2021 refusing to allow the Applicant to re-open her non-refoulement claim.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
4. The Applicant is a national of Indonesia. She arrived in Hong Kong on 16 July 2013 with permission to remain and work as a foreign domestic helper until the expiration of her employment contract on 24 April 2015 or within 14 days of its termination, whichever was the earlier. Her employment contract was prematurely terminated on 17 July 2013. She did not depart after the expiry of her limit of stay, and overstayed instead. More than 3 years later, on 19 August 2016, she was arrested by the police. After she was referred to the Immigration Department for investigation, the Applicant raised a non-refoulement claim by way of a written representation on 29 August 2016, alleging that her life would be in danger if she returned to Indonesia.
5. The screening process under the Unified Screening Mechanism commenced on 16 June 2017 when the Applicant was given a briefing session by an immigration officer, during which she was given a blank Non-Refoulement Claim Form (“NCF”) to be completed by her.
6. The Applicant accepted legal assistance from the Duty Lawyer Service (“DLS”) in relation to her non-refoulement claim.
7. By a written request dated 7 July 2017, the Director required the Applicant to return her completed NCF within 28 days, ie on or before 4 August 2017. A written reminder was sent to her on 28 July 2017 with a warning that her claim would be treated as withdrawn if she failed to complete and return the NCF as required. The Applicant was subsequently released on recognizance pending the determination of her claim.
8. On 4 August 2017 the DLS informed the Immigration Department in writing that they had no further instructions to act for the Applicant.
9. The Applicant failed to return her completed NCF to the Director on or before 4 August 2017.
10. By a letter dated 8 August 2017, the Director informed the Applicant that due to her failure to return her completed NCF within the stipulated period, her non-refoulement claim was treated as withdrawn, but if she wished to apply to re-open her claim, she must provide sufficient evidence in writing to show that she had not been able to return her completed NCF due to circumstances beyond her control.
11. No response was received from the Applicant. She also failed to report on her recognizance on 4 August 2017. Thereafter, the Applicant absconded for more than 3 years until her arrest by the police again on 13 April 2021.
12. On 4 May 2021 the Applicant requested the re-opening of her non-refoulement claim on the ground that her problem in her home country had not yet been resolved and her life would still be in danger in Indonesia.
13. By a letter dated 20 May 2021, the Director requested the Applicant to provide further information and evidence in writing on or before 3 June 2021 to show that she had not been able to return her completed NCF due to circumstances beyond her control.
14. By a letter dated 25 May 2021 (which was received by the Immigration Department only on 7 June 2021), the Applicant stated that she did not return the NCF because she was scared that she would be sent back to Indonesia and she did not at that time have money to pay for transportation to the DLS or the Immigration Department.
15. By a Notice of Decision dated 11 June 2021, the Director refused to allow the Applicant to re-open her non-refoulement claim on the ground that she had failed to provide sufficient evidence in writing to satisfy an immigration officer that she had not been able to return her completed NCF due to circumstances beyond her control. The following was stated in the Notice of Decision:
“You have been overstaying in Hong Kong for more than 3 years and then arrested by the police. Subsequently you lodged a non-refoulement claim. The screening process of your claim was commenced on 16 July 2017 and you accepted the publicly-funded legal assistance provide by the DLS. You have failed to report to the recognizance office and absconded for more than 3 years until you were rearrested by the Hong Kong police. It [cast] doubts on you true intention to pursue your claim. You have been staying in Hong Kong for at least 7 years totally. In a prosperous city which information flow is so free and uninhibited like Hong Kong, it is hard for one to comprehend why it would be impossible for you to get in touch with the DLS or RAS if you had the real intention to do so. You claimed that you did not have the money for transportation. It is hard to understand that why you have been able to sustain a living in Hong Kong for such a long period of time yet you did not have the money for transportation in order to contact DLS or RAS. It is questionable as to why you failed to contact the DLS or RAS, or even to make a phone call to inform them about your situation, or to enquire/follow up your non-refoulement claim if you wished to do so.”
16. The Applicant did not lodge any appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision. Instead, on 12 July 2021, she filed a Form 86 to apply for leave to apply for judicial review naming the Board and the Director as proposed respondents. She did not give any grounds for judicial review in either the Form 86 or her supporting affirmation filed on the same date.
THE JUDGE’S DECISION
17. On 24 August 2021, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons ([2022] HKCFI 2466):
“[14] The Applicant did not lodge any appeal to the Torture Claims Appeal Board (‘Board’) against the Director’s decision, but instead on 12 July 2021 filed a Form 86 for leave to apply for judicial review of the Director’s decision, and no ground for seeking relief was given in her Form or her supporting affirmation of the same date. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
[15] More importantly, as advised by the Director in the decision, if the Applicant had intended to challenge the decision of the immigration officer not to allow her to re-open her non-refoulement claim, she should have first lodged an appeal to the Board pursuant to Section 37ZR(a) of the Ordinance, and as it was held by the Court of Appeal in Re Moshsin Ali[2018] HKCA 549 where it undertook an extensive review of the administrative structure for the processing of non-refoulement claims, first by the Immigration Department, and followed by the Board in the two-tier process, and concluded that as the Board’s decision supersedes the immigration officer’s decision and represents the final decision on the claim at the end of its processing, the decision of the immigration officer is not a decision, within the administrative structure, which is susceptible to judicial review before an appeal to the Board has been pursued.
[16] In the premises and for the reasons given, and as the Applicant has not lodged any appeal to the Board, I do not find any legal basis in her intended application for judicial review of the Director’s decision, and accordingly I refuse her leave application.”
18. On 6 October 2022, the Judge refused the Applicant’s application by summons dated 13 May 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2955).
THIS APPLICATION
19. By a summons taken out on 6 October 2022, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Order. In the summons, the Applicant stated the following:
“I would like to challenge the decision.”
20. In her affirmation filed on 6 October 2022 in support of the application, the Applicant merely stated the following:
“I’m late to Appeal. I would like to ask for extension of time.”
21. In her written submissions dated 19 October 2022, the Applicant raised some general complaints about the situation in her home country, and made some obviously inapposite statements, eg the Appeal Board “did not give [her] time” (even though she had never appealed the Director’s decision to the Board), or the Court of Appeal “dismissed” her application for leave and “at last [she] came to the Court of Final Appeal” (when the present application is an application to the Court of Appeal for an extension of time to appeal).
DISCUSSION
22. In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
23. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike[2019] HKCA 702, at §19.
24. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 24 August 2021, and has failed to raise any viable ground of appeal against the Order. If the Applicant wished to challenge the Director’s decision, she could and should have lodged an appeal to the Board pursuant to s 37ZR(a) of the Immigration Ordinance, Cap 115. We are unable to see any good reason why the Applicant should be allowed to bypass the statutory appeal process and apply to the High Court directly for leave to apply for judicial review of the Director’s decision. In this regard, it is trite that judicial review is a remedy of last resort, and an applicant should generally exhaust all alternative remedies before seeking to invoke the supervisory jurisdiction of the High Court by way of judicial review.
25. There is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
26. The application for extension of time to appeal is refused, and the Applicant’s summons of 6 October 2022 is dismissed.
(Maria Yuen)
Justice of Appeal | (Anderson Chow)
Justice of Appeal |
The Applicant, acting in person