RE FITRIANI

CAMP 45/2022

[2023] HKCA 344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 45 OF 2022

(ON APPEAL FROM HCAL NO. 2993 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 28 June 2022, this Court (Cheung and Barma JJA) gave the decision dismissing the applicant’s extension of time to appeal against the decision of Deputy High Court Judge P Li given on 28 September 2021 by which he refused to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board.

2.  The applicant now applies, by a notice of motion supported by a written submission, for leave to appeal against our decision to the Court of Final Appeal.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The notice of motion stated that :

‘ I would like to inform to Court of Final Appeal. There were error of law. I am disagree with the decision made by the Director of Immigration and as well as the decision made by the Director of Immigration and as well as the decision made by the Adjudicator of Torture Claim Appeal Board. I am totally disagree with the decision maker authorities. They were totally relied on the web news information. There is no any Investigation in my case so I request for Revived my case.’

5.  In her written submission, the applicant stated that she had the basic right to understand the contents of the judgment. She stated that no assistance was given to her regarding BOR 2 risk. She stated that the appellate court should point out such misbehaviour.

II.  Legal principles

6.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’), 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.

III.  Our view

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

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

IV.  Disposition

9.  For these reasons, the notice of motion is dismissed.

CAMP 45/2022

[2022] HKCA 955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 45 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2993 OF 2018)

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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.  Renewed application for extension of time to appeal

1.  On 28 December 2018, the applicant issued her application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 29 November 2018 dismissing her appeal against the decisions of the Director of Immigration (‘the Director’) dated 6 April 2018 rejecting her non-refoulement claim.

2.  In his decision of 28 September 2021, Deputy High Court Judge P Li refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time for about one week, the applicant took out an application on 19 October 2021 before the Judge requesting an extension of time to appeal.  The Judge on 8 February 2022 rejected the applicant’s application.  

4.  Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 8 February 2022, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

6.  The applicant is a national of Indonesia.  She entered Hong Kong as a domestic helper on 4 January 2011 and upon early termination of her contract, she overstayed and was subsequently arrested on 21 April 2016.  She lodged her non‑refoulement claim shortly thereafter on the basis that she would be killed or harmed by her husband and loan sharks if she returns to Indonesia. 

7.  The details of the applicant’s claim have been summarized by the Judge at [3] to [10] of the CALL‑1 Form.

III.  The Director’s Decision

8.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 6 April 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Hong Kong Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Hong Kong Bill of Rights (‘BOR 2’), as well as her other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

9.  The applicant appealed against the Director’s Decisions to the Board and attended an oral hearing on 31 July 2018 before the Board.  The Board held that the applicant’s evidence was not credible and rejected the same.  There were inconsistencies found in her oral evidence in comparison to the information she had previously provided to the Director. Moreover, the applicant’s credibility was undermined by her delay to bring her claim in 2016 when she could have done so in 2011. 

10.  In essence, the Board did not accept the applicant was in fear of returning to Indonesia for the reasons she has claimed.  In light of this, the Board was of the view that there would not be a risk of harm if the applicant is returned to Indonesia.  Therefore, the Board dismissed the applicant’s appeal against the Director’s decisions on 29 November 2018.

V.  Decisions of the Judge

11.  In his decision dated 28 September 2021, the Judge accepted the Board’s view, namely that the applicant was not a truthful witness.  In any event, the Judge did not find any error of law and procedure.  The Judge found that the applicant failed to show any reasonable prospect of success in the intended judicial review.   

12.  In his decision dated 8 February 2022, the Judge held that the applicant was unable to set out any valid ground to challenge the Board’s Decision.  He also held that upon careful consideration of the Board’s decision, there was no merit in the intended judicial review.

VI.  The Present Application

13.  The applicant did not set out any grounds of appeal in the present summons.  As to her affirmation, the applicant merely stated that she disagrees with the authorities without any explanation nor elaboration.

14.  The applicant stated in her written submissions dated 22 February 2022 that :

1)  Her case has not been determined fairly;

2)  There should be a proper and fair mechanism that allows unrepresented litigants to understand more about their claims;

3)  She was never provided with proper legal and language assistance.  The Board’s decision has never been read to her in her own language.  The failure to provide proper assistance is procedurally unfair to the applicant; and 

4)  The discriminatory act of the authorities towards non-refoulement claimants in the quick disposal of non‑refoulement cases is unacceptable and is detrimental to the spirit of the judicial system.

VII.  Analysis

1)  Length of delay and reasons for the delay

15.  In considering whether to extend time for appeal, the Court will have regard to :

1)  length of the delay;

2)  reasons for the delay;

3)  prospect of the intended appeal; and

4)  prejudice to the putative respondent if extension of time was granted.                

16.  The applicant was late by about one week when she filed her application for extension of time to appeal without any explanation.  In any event, we will turn to the merits of the intended appeal.

2)  Prospect of the intended appeal

17.  On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the Judge and would only consider reversing that decision if an applicant 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.  An appeal 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.  

18.  In the present application, the applicant’s summons and affirmation simply challenged the decision made by the Judge.  As for her written submissions, they contain general and bare assertions, such as her life would be in danger if she was returned to Indonesia and other allegations against the decisions made the authorities, without providing any specific particulars.  These are not proper grounds of appeal.  As to the alleged lack of translation service and legal assistance raised for the first time in her submissions before us, the applicant was assisted by the Duty Lawyer Service when she submitted her documents to the Director and when she attended an interview with the Immigration Department on 3 April 2018.  Interpretation service was provided to her at the interview with the Director and also when she attended the hearing before the Board on 31 July 2018.  The applicant was provided with an interpreter before the Judge at the hearing on 19 July 2021.

19.  In any event, the Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah[2018] HKCA 14.  Furthermore, the high standard of fairness required by law would not entail interpretation service being made available to the claimant all the time as she desires: Re Gurung Sagar[2019] HKCA 658.

20.  In our judgment, the applicant does not have any prospect of success in her intended appeal.  The Judge had considered all the relevant matters including the merits of her case when he refused to grant leave for judicial review and dismissed her application.

21.  Since the applicant has not identified any error of law or procedural unfairness in the Judge’s Decision of 28 September 2021, the intended appeal cannot have any prospect of success.

VIII.  Disposition

22.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 8 February 2022.