Re Agustinna Hardiani

CAMP 450/2021

[2022] HKCA 1708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 450 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1010 OF 2018)

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Before:  Hon Yuen and Barma JJA in Court

Date of Written Submission: 5 November 2021

Date of Judgment: 18 November 2022

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J U D G M E N T

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

1.On 20 April 2021, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 7 June 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 21 September 2021. 

3.On 11 October 2021, the applicant filed a summons in CAMP 450/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.In compliance with the directions made by the Registrar of Civil Appeals on 27 October 2021, the applicant lodged her written submissions on 5 November 2021. 

5.Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.The applicant is an Indonesian national.  She arrived in Hong Kong on 17 February 2012 with permission to work as a foreign domestic helper.  After the termination of her employment contract, she overstayed and was subsequently arrested by the police.  She was referred to the Immigration Department on 20 August 2014 for investigation.  On 21 August 2014, she raised a non-refoulement claim alleging that if refouled, she would be harmed or killed by her father’s creditor for her father’s failure to repay his loan.  The factual background of this case was succinctly summarised by the Judge at [2] – [5] of the JR Decision ([2021] HKCFI 1015).

7.By a Notice of Decision dated 19 July 2016 and a Notice of Further Decision dated 4 August 2017, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

8.The applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 22 February 2018 and by its decision dated 9 May 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [55] to [65], the Board did not consider the applicant was a reliable witness as her evidence was vague and inconsistent such that she could not even say what was the amount of the loan or identify the creditors.  It was found that no credence could be given to her story.  And even on her account of events, there is no evidence of state or official involvement, and in any event, internal relocation is a viable option to avoid the creditors.  For the aforesaid reasons, her non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.On 4 June 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision. She did not provide any ground for relief in the Form or in her supporting affirmation.

The JR Decision

10.The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused leave for judicial review for reasons set out in [11] - [14] of the JR Decision:

“11.   On 4 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that her life would be in danger if refouled to her home country without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error in law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

12.  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.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim 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.

14.  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.”

Application for extension of time to appeal the JR Decision

11.As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 7 June 2021 (“the CFI Summons”) for an extension of time to appeal.  That was dismissed by the Judge on 21 September 2021.  Hence, the Summons to this court. 

Discussion

12.In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.As for (1), the applicant was late by more than 4 weeks between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was substantial.   

14.As for (2), the reasons for the delay, the applicant explained in her summons and supporting affirmation that she did not receive the JR Decision.  At the hearing, she further explained to the Judge that she was only informed of the JR Decision when she reported for recognizance at the Immigration Department, but by then she was already out of time with her intended appeal. 

15.The court file showed that the letter from the court with the JR Decision dated 20 April 2021 was undelivered but it had been sent to the address the applicant provided in the Form 86 and the CFI Summons and the summons filed in this court.  In the circumstances, we do not accept that there is a good reason for her delay.

16.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision, and the Judge did not find any error on the part of the Board.

17.In the Summons and supporting affirmation filed in this Court, the applicant had failed to provide any valid ground of her intended appeal against the JR Decision save for saying that her life will be in danger if she were to return to her home country.

18.In her written submissions,the applicant quoted passages from ST v Director of Immigration^[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She then provided some broad and general grounds against the Board’s decision without referring to any specific parts of the Board’s decision.  

19.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal and the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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.  Further, 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, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review, see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

20.It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility as her evidence was unreliable and implausible.  Even on her own evidence, she did not suffer any injury and in any event, she may safely relocate to other parts of Indonesia to avoid the father’s creditors.  It is perfectly open for the Board to reach its findings and conclusions, and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.

21.We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

22.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 11 October 2021.

The applicant, unrepresented, acting in person