Wiji Utami v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CAMP 142 /2022

[2022] HKCA 1155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 142 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1842 OF 2018)

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Before:  Hon Kwan VP and Barma JA in Court

Date of Written Submissions: 19 May 2022

Date of Judgment: 11 August 2022

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 14 July 2020, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim^[1].

2.On 22 March 2021, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the judge was of the view there is no merit in the intended appeal^[2].

3.On 6 May 2022, the applicant filed the present summons with the Court of Appeal essentially to challenge the decision of the judge for refusing the extension of time.  In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 14 July 2020. 

4.The applicant is a national of Indonesia and is 43 years old.  She came to Hong Kong to work as a foreign domestic helper on 19 August 2010 but was prematurely terminated.  Upon giving birth to her son on 14 November 2011, the applicant was arrested for overstaying on the same day, for which she was sentenced to four weeks’ imprisonment (suspended for 3 years).  She applied for a declaration of paternity against a Hong Kong permanent resident for her son in the Family Court and her son’s status as a Hong Kong permanent resident was established on 7 June 2012.  On 26 January 2015 and 2 February 2015, the applicant lodged her non-refoulement claim on the basis that if she is returned to Indonesia she would be harmed or killed by her husband and her father, as she has given birth to an illegitimate son in Hong Kong and she had got a loan borrowed under her name.

5.By a Notice of Decision dated 28 March 2018, the Director rejected the applicant’s claim on torture risk^[3], BOR 3 risk^[4], BOR 2 risk^[5] and persecution risk^[6]. 

6.The applicant appealed against the Director’s decision to the Board. The Board held a hearing on 22 June 2018 and the applicant answered questions from the Board.   It found her evidence inconsistent and had serious doubts on her credibility. The Board noted the applicant’s admission she was not in fact worried about her husband and her father, as the debts alleged had nothing to do with the applicant, and the reason for remaining in Hong Kong was for her son to receive a better education.  Whilst the Board was inclined to accept that the applicant was telling the truth at the hearing, her evidence was of little value.  The Board further found there is adequate protection in Indonesia and internal relocation is a viable option to the applicant. 

7.The Board therefore decided that the applicant has failed to establish a real risk of harm and dismissed her appeal on 30 August 2018.

The judge’s decision

8.On 5 September 2018, the applicant applied for leave to seek judicial review against the Board’s decision.  She did not supply any grounds for seeking relief and simply annexed the decisions of the Director and the Board to her affirmation.  As the applicant was absent at the hearing fixed on 18 October 2019, the judge considered the merits of the application on the papers following the Court of Appeal decision in Re Abdus Salam [2019] HKCA 1091 at §22.

9.The judge found that the applicant did not set out any reasons that the Board was erroneous in reaching its decision.  The judge followed the approach of the Court of Appeal in Re: Kartini [2019] HKCA 1022 at §13, namely, that the assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation is primarily within the province of the Board (and the Director) and 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. The judge found no error of law or procedural irregularity in the Board’s decision.  As the judge found no reasonable prospect of success in the intended judicial review, he dismissed the leave application on 14 July 2020.

Grounds of intended appeal

10.The applicant did not provide any or any substantive grounds of appeal in her present summons and her supporting affirmation, merely asserting that her intended appeal is very important for her “life safety”.  In her written submissions, she claimed that she did not receive the judgment from the court, and repeated her fear to return to Indonesia, as her enemy, especially the police, was powerful and influential in her country.

Analysis and disposition

11.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

12.Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 14 July 2020.  The judgment was sent to her last known address by post and was not returned undelivered.  The applicant filed a notice of change of address on 3 September 2020 and took out a summons in the court below on 21 December 2020.  She was late for over 3 months.

13.Furthermore, pursuant to Order 59, rule 14(3) of the Rules of the High Court (Cap 4A), where an ex parte application has been refused by the court below, an application for similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal.  The applicant’s application for extension of time to appeal was refused by the court below on 22 March 2021.  The judge’s decision was sent to her address by post on 30 April 2021^[7] and was not returned undelivered.  She was late for over 13 months when she made the present application to the Court of Appeal on 6 May 2022. 

14.The applicant’s delay in both applications for extension of time was very substantial and no reasonable explanation was provided.

15.As the applicant’s delay is inexcusable, she must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

16.In assessing the merits of the intended appeal, the court 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.

17.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 decision of the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.The applicant claimed in her affirmation filed in the court below that the judge’s decision was made in her absence and she wanted legal representation for her case.  However, the applicant did not say she did not receive the correspondence from the court.  It has also been repeatedly stated by the Court of Appeal that in non-refoulement cases, the right to legal representation is not an absolute right (Re Paswan Shibu Lal [2018] HKCA 249 at §21).

19.We do not accept the applicant’s allegation that she did not receive the judgments of the judge made on 14 July 2020 and 22 March 2021, which were sent by post to her respective addresses as notified to the court and were not returned undelivered. 

20.In any event, the applicant did not put forward any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave for her to bring judicial review.  She failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters placed before the court or was otherwise plainly wrong in refusing to grant leave to bring judicial review.

21.For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 14 July 2020 and dismiss the summons filed on 6 May 2022.

The Applicant, acting in person