Re Wiyanti

CAMP 511/2021

[2022] HKCA 93

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 511 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2477 OF 2018)

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Before:  Hon Chu and Barma JJA in Court

Date of Judgment:  18 January 2022

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J U D G M E N T

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

1.This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”)  dated 4 February 2021 refusing her application for leave to apply for judicial review.

2.The applicant has filed an affirmation and also lodged a written submission in support of her application.  

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

4.The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal against the decision of the Director of Immigration (“the Director”)  rejecting her non-refoulement claim.

5.The applicant is a national of Indonesia aged 46.  She first came to Hong Kong to work as a domestic helper in 2000.  Her last employment contract was terminated on 17 October 2014 and she has since 1 November 2014 overstayed in Hong Kong.  She was arrested by the police on 27 June 2015.  In July 2015, she raised a non-refoulement claim based on fear of being harmed or killed by her parents’ creditor and his followers due to her inability to repay her parents’ loan.  The details of the applicant’s claim were set out in the Director’s decision at [7].  We will not repeat them.  

6.By his decision dated 19 March 2018, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and the BOR 2 risk[4] grounds.

7.The applicant’s appeal to the Board against the Director’s Decision was heard on 4 June 2018, during which the applicant gave evidence and answered questions from the Board.  By its decision dated 19 October 2018, the Board dismissed the appeal.  The Board found the applicant was not a witness of truth and was not satisfied she had told the truth about critical aspects of her claim. The Board did not accept her family had borrowed a loan from a loan shark, or that she and her family had been harassed, threatened or assaulted by the loan shark or his people.  The Board considered the applicant would not be at risk of any harm if she returned to her home country.  The Board concluded that, on the evidence, the applicant was not entitled to non-refoulement protection on any of the applicable grounds.

8.On 6 November 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  In neither of the documents had the applicant set out any ground for seeking relief.   

9.The Judge dealt with the application on the papers.  By a Form CALL-1 dated 4 February 2021[5], the Judge dismissed the application and his principal reasons were set out in [14] to [23] as follows:

“14. In the present case, the Board in fact rejected the applicant’s appeal/petition on the ground that it disbelieved the applicant and found her to be an incredible witness. The Board rejected her account of primary facts based on the major inconsistencies and contradictions in her evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

15. As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16. The applicant stated no grounds of the judicial review in Form 86. She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17. The Board was entitled to find the applicant incredible based on inconsistencies in her evidence. Indeed, the applicant delayed in lodging the claim for protection after she came to Hong Kong and even after she was not allowed to stay when her employment was terminated. She only made the claim after one year when she was arrested. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. It could be taken into account as damaging the applicant’s credibility.

18. Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating only a remote and unreal risk of future harm. There was no valid reason why the creditor would target the applicant and still wish to pursue the applicant after so many years.

19. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

20. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

21. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

22. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

23. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

10.Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 18 February 2021.

11.By a summons filed on 16 March 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge P Li dealt with the application on the papers and refused the application by a decision handed down on 11 November 2021[6]. 

12.On 11 November 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal. 

13.In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted. 

14.The applicant was late by about four weeks when she filed the 16 March 2021 summons.  The delay is not insubstantial.  She explained in the application made to Deputy Judge P Li that she did not receive the letter from the Court.  It appears that she had changed her address without informing the Court, and as Deputy Judge P Li pointed out, the fault rests with the applicant.  In the absence of satisfactory explanation for the delay, the applicant has to show that the intended appeal has a real prospect of success. 

15.In considering the merit of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.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 this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.In the present application, the applicant has not provided any ground of appeal in her summons or affirmation.  

18.In the written submission, the applicant stated that she had submitted all related documents but the Director and the Board did not believe her and reject her claim.  She asked to be allowed to appeal to the Court of Appeal as she needed help to save her life. 

19.We are of the view that the applicant has not put forward any substantial or arguable grounds of appeal against the Judge’s decision.  Importantly, she has not put forward any challenge to the Judge’s decision.  Further, her assertion of risk of danger is unsustainable in light of the Board’s rejection of the facts underlying her claim, and she has not pointed to any error in the Board’s findings.  

20.We have in any event examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  The intended judicial review has no reasonable prospect of success and the Judge did not err in dismissing the application for leave to apply for judicial review.

21.As the applicant’s intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 11 November 2021. 

The applicant, unrepresented, acted in person.