Re Nova Liyasanti

HCAL 1635/2019

[2022] HKCFI 2679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1635 OF 2019

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Before: Deputy High Court Judge To in Chambers

Date of Decision: 2 September 2022

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D E C I S I O N

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Introduction

1.On 14 June 2019, the Applicant applied by Form 86 for leave to apply for judicial review (the “leave application”) of the Decision of the Torture Claims Appeal Board / non-Refoulement Claims Petition Office (the “Board”) dated 6 June 2019 (the “Decision”). She did not attend the hearing. On 28 February 2022, Deputy High Court Judge P. Li (“DHCJ Li”) issued the Order and Form Call-1 refusing to grant her leave to apply for judicial review. The Applicant now seeks leave by summons filed on 6 July 2022 (the “Summons”) to appeal the above Order out of time.

The Law

2.In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing 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.

The length of delay and reasons for the delay

3.By 6 July 2022 when the Summons was filed, more than four months had lapsed since the date of the Order. The application is more than three and half months out of time. The delay is grossly inordinate in the context of a fourteen-day appeal period. The Applicant asserted in her Summons and supporting affirmation that she had not received the Order and that it was until early July 2022 that she was informed about the Order by an immigration officer. She did not state the grounds of her intended appeal.

4.The explanation given are mere assertions which are not supported by any corroborating or independent evidence. It does not explain why the Applicant did not receive the Order. An important factor which underlies her assertions is whether the address in Kik Yeung Road, Yuen Long which she provided in her Form 86 and to which the Order was sent on 28 February 2022 is effective. The Court noted that the address she gave in her Summons is a different address in Pat Heung. Obviously, she did not receive the Order because she did not update the Court with her change in address. To assist her in presenting a proper case, this Court gave her directions on 27 July 2022 to file a statement stating:

(a) all her residential addresses since 14 June 2019 when she made the leave application;

(b) the date of change of address thereafter, exhibiting supporting documentary evidence, if any;

(c) the date of reporting the change to the Immigration Department;

(d) the date of reporting the change to the High Court; and

(e) grounds of the proposed appeal.

She was also advised that her application for extension of time will be determined on paper after 21 days from the date of the directions, regardless whether the above directions have been complied with.

5.On 5 August 2022, the Applicant delivered her one-page statement (the “Statement”) confirming that she moved to the Pat Heung address on 11 May 2021 in answer to items (a) and (b) in the directions. She also said she will be reporting to the Immigration Department on 28 August 2022, but mentioned nothing as to whether she had informed the Immigration Department or the Court of her change of address in answer to items (c) and (d). Her Statement confirmed the Court’s belief that she did not receive the Order because she had changed her address since the date she filed the leave application without informing the Court.

6.In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

Thus, it is the Applicant’s duty to report her change of address to the Court. If she did not, he has to bear the consequence of his neglect. Hence, there is no valid explanation for the delay.

Prospect of success of the intended appeal

7.The Applicant’s sole ground of appeal as stated in her Statement is that she would be in danger if returned to Indonesia because she would be unable to pay the debt owed by her or her father to the creditor. That was also her ground for seeking non-refoulement protection which was rejected by the Director of Immigration in his notice of decision. She appealed against the Notice but her appeal was dismissed by the Board via its Decision dated 6 June 2019.

8.DHCJ Li had scheduled a hearing on 24 January 2022 for hearing the Applicant’s leave application. The Applicant did not attend. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, DHCJ Li was satisfied that there is no error of law or procedure in the Board’s Decision and that the Decision is reasonable. Hence, he refused her leave application.

9.This Court noted that the notice of hearing had been sent to the Applicant’s address at Kik Yeung Road. According to the Statement, at the time the Applicant had already moved to Pat Heung. The move was unknown to DHCJ Li. But, even accepting her assertion in her Statement, she has to bear the consequence of her failure to attend the hearing.

10.Furthermore, the function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[3]; Re Md Shohel Sheak[4]; and Re Limbu Birkhaman[5]. Thus, the court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

11.Having rigorously examined the Decision, the Form Call-1, the papers and the evidence with anxious scrutiny, the Court was satisfied that DHCJ Li and the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and correctly identified the issues. The Board observed a very high standard of fairness. The Board found the Applicant not credible and was not satisfied with her evidence. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. DHCJ Li could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. He considered the Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. He found the Decision of the Board is utterly without fault. I agree with DHCJ Li’s conclusion.

12.For the above reasons, the Applicant has no arguable grounds for judicial review. Her proposed judicial review has no realistic prospect of success, neither has her intended appeal against DHCJ Li’s decision refusing to grant her leave to apply for judicial review. For this reason alone, it would be futile to grant leave to appeal out of time.

Prejudice to the respondent

13.The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance which are likely to have to be resolved by the courts in any event. Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

14.The Applicant has no arguable grounds of appeal or judicial review and has no valid explanation for the very substantial delay of almost three and half months. For these reasons alone, her application for leave to appeal out of time must be dismissed. It would be a futile exercise of the Court’s discretion to grant extension of time to enable an applicant to appeal or to apply for a judicial review which is bound to fail. To allow such an un-meritorious challenge to proceed would be gravely prejudicial to the intended respondent and the administration. The application does not raise any questions of general public importance. Accordingly, the application for extension of time to appeal is refused.

The applicant is not represented