Re Yuliani Rahmawati Galiman

CACV 3/2022

[2022] HKCA 678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 3 OF 2022

(ON APPEAL FROM HCAL 2345 OF 2018)

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Before:  Hon Au JA and Lisa Wong J in Court

Date of Hearing:  26 April 2022

Date of Judgment:  13 May 2022

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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.This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  set out in the Form CALL-1 dated 24 December 2021, by which the Deputy Judge refused to grant extension of time to the applicant and dismissed her application for leave to apply for judicial review ([2021] HKCFI 3866)  (“the Leave Decision”).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 12 April 2018 (“the Board’s Decision”)  and the decisions of the Director of Immigration (“the Director”)  dated 9 August 2016 and 2 August 2017 (collectively referred as “the Director’s Decisions”)  rejecting the applicant’s non-refoulement claim.

Background

3.The applicant is a national of Indonesia.  She last arrived in Hong Kong on 21 May 2007 for her second employment contract as a foreign domestic helper and was allowed to stay in Hong Kong until 21 May 2009 or within 14 days of her contract’s early termination.  Her contract was prematurely terminated on 21 January 2009.  However, she did not depart and overstayed.  On 5 October 2010, she was arrested by the police and referred to the Immigration Department for investigation.  She then raised a torture claim on 27 October 2010, which was later refused by the Director on 30 October 2012.  On 5 January 2015, she raised a non-refoulement claim on the basis that she would be harmed or killed by her husband Sunari if she returned to Indonesia, as she refused to help him repay his debt to the money lender.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [3] of the Leave Decision.

4.By a Notice of Decision dated 9 August 2016, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk[1], namely BOR3 risk[2] and persecution risk[3].  Taking into account all relevant circumstances, the Director considered that her non-refoulement claim was unsubstantiated.

5.By a Notice of Further Decision dated 2 August 2017, the Director further rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4].

6.The applicant then appealed against the Director’s Decisions to the Board and attended a hearing before the Board on 22 January 2018.  The Board dismissed her appeal on 12 April 2018. Having assessed the evidence, the Board considered that as the applicant had not contacted her husband for years since her departure, the Board doubted that the applicant’s husband would still have any adverse interest in her.  The Board also considered that there was no real risk that the applicant would suffer violence from her husband should she return to Indonesia and internal relocation would be available to the applicant upon her return to Indonesia.  Accordingly, the applicant failed to substantiate her claim and the Board dismissed her appeal.

The Leave Decision

7.On 25 October 2018, the applicant filed a Form 86 and a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decisions.  By that time, she was late for over three months with her application.  The applicant failed to attend the hearing before the Deputy Judge on 7 December 2021.

8.By the Leave Decision, the Deputy Judge refused to grant extension of time to the applicant and dismissed her application for leave to apply for judicial review. His reasons were set out at [9] - [20] of the Leave Decision:

“9. On 25 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge which can be summarized as follows:

(1)  that the Director had wrongly decided the Applicant’s case on various grounds but the Adjudicator did not address those issues and instead came up with the assessment on more or less of a template basis;

(2)  that the Applicant was not given language assistance with translation of the Director’s decision as English is not her first language that without legal assistance it was hard for her to understand how to proceed with her appeal to the Board which was procedurally unfair to her;

(3)  that the Board was illogical, unreasonable and unfair in completely rejecting her claim without explaining what assertions that it found that the Applicant had so badly explained which was an example of the Board providing inadequate reasons for rejecting her claim and not dealing with the facts in a proper way which it failed to take into account properly;

(4)  that the Board’s decision was never explained to the Applicant that without knowing thoroughly how her case had been determined that it was not fair to the Applicant;

(5)  that the Director had merely adopted a formula and biased approach in assessing her claim and that the same COI were used to support her assertions of overall corruption and ineffectiveness of the Indonesian police but at the same time to show that reforms have been on-going in the police that there are objective indications of positive in recent years; and

(6)  that the hearing bundle was served on the Applicant shortly before her appeal hearing before the Board thereby giving her insufficient time to prepare for her appeal which is procedurally unfair.

10. By then however the Applicant was out of time with her Form 86, as Order 53 rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

11. As the last day of the 3-month period for her to file her Form 86 fell on 12 July 2018, the Applicant was therefore some 15 weeks 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 393.

12. In the Applicant’s case, a delay of 15 weeks must be considered as very substantial and inordinate, for which she explained in her supporting affirmation that as she could not read English and no longer had legal representation, and that she had difficulties getting help to prepare the necessary documents for her present application that by the time she was able to do so, she was already out of time with her application.

13. The record shows that the Board’s decision was sent on the same day to her last reported address without being returned through undelivered post, and while it is accepted that the Applicant as an unrepresented litigant would require help with the preparation of her present application, in the absence of any further details or documentary evidence to corroborate her bare assertions, I am not satisfied that she has provided a good reason for her such serious delay or that it would have taken her more than 6 months in total to be able to make her present application.

14. As for the merits, if any, of her intended application, most of her proposed grounds as stated above are however just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Adjudicator had erred in their decisions, or in what way did the Director or the Board reach their decisions wrongly or that they were unfair or unreasonable, or how did they fail to take into account of the relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and while she may not be able to read English, it is clear that she was assisted by an interpreter during her appeal hearing before the Board and during which she never raised any such issue to the Board. As such and in the absence of any error of law or irrationality 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 of these grounds reasonably arguable for her intended challenge.

15. 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.

16. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her shortly before her appeal hearing before the Board which consisted of documents in English including the Director’s decision thereby giving her insufficient time to prepare for her appeal.

17. Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, nor did she attend the hearing of her application without any explanation, I note that most of the documents including her SCF and the Director’s decisions should be already well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her SCF was completed on her own instructions with legal assistance, and as noted above that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

18. Furthermore, the fact is that the Applicant’s case was accepted by both the Director and the Board as stated by her in her claim but that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in her claim as so stated 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.

19. 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.

20.  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 leave application.”

The Appeal

9.On 3 January 2022, the applicant filed a Notice of Appeal against the Leave Decision.  However, she did not provide any ground of appeal in her Notice of Appeal.

10.Pursuant to the directions made by this Court on 4 March 2022 and 30 March 2022, the applicant lodged her written submissions on 13 April 2022.  In her written submissions, she claimed that she would be killed by the loan shark and would face grave danger.  She also claimed that the Deputy Judge and the Director failed to consider her case in context and that Indonesia in general was facing issues of mistreatment of women, corruption and ineffectiveness of the police.

11.We heard the appeal on 26 April 2022.  An Indonesian 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

12.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].

13.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.

14.Nowhere in her Notice of Appeal or written submissions 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 Deputy Judge and we would only reverse that decision if an appellant 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: see Re Md Shohel Sheak [2018] HKCA 714 at [13].  As there is no viable ground of appeal given by the applicant, the appeal ought to be dismissed on this basis alone.

15.In any event, the applicant’s general and bare assertions of fear if refouled to her home country do not constitute valid ground of appeal.  As repeatedly emphasised by the Court, 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].

16.For the above reasons, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person