Re Mukhayati

CAMP 279/2022, [2023] HKCA 543

On Appeal From [2022] HKCFI 1444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 279 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 149/2022)

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J U D G M E N T

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

1.This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 2 June 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 11 January 2022 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 30 November 2021 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.The applicant is a national of Indonesia.  She entered Hong Kong on 22 June 2018 as a foreign domestic helper, but she overstayed after the termination of her employment contract and was thereafter referred to the Immigration Department on 18 August 2021.  On 27 September 2021, she lodged a non-refoulement claim.

3.The applicant’s claim was based on a fear of being harmed or killed by her ex-husband.  The details of the applicant’s claim have been summarised by the Judge at [3] and [4] of his decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision dated 30 November 2021, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].

5.The applicant appealed to the Board.  After a hearing on 4 January 2022, the Board dismissed the applicant’s appeal by its Decision.  In dismissing her appeal, the Board, while accepting the applicant’s evidence on the applicant’s marriage and her ex-husband’s threatening behaviour, found that the applicant’s fear was on the facts mere speculation, and that due to the lapse of time, the risk of harm (if any) from her ex‑husband is low.

The Judge’s decision

6.The applicant filed a Form 86 on 17 February 2022 seeking to judicially review the Board’s Decision, without setting out any grounds.

7.In her supporting affirmation, the applicant stated that her life was at risk in Indonesia and that she wished to remain in Hong Kong.

8.After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL‑1 Form:

“13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …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 (and the Director). 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.’

16.  The applicant has not raised any valid ground in support of her application.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

The present application for extension of time to appeal

9.The applicant’s last known address at the time of the Judge’s decision was at 93-99 Wan Chai Road, Wan Chai (“the Wan Chai Road Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Wan Chai Road Address on 2 June 2022, and were not returned undelivered.

10.Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 2 June 2022.

11.The applicant thereafter notified the court of a change of address on 27 June 2022, by which she stated that her address was 257 Queen’s Road East, Wan Chai (“the Queen’s Road East Address”).  She took out a summons in the Court of First Instance on 30 June 2022 seeking extension of time to appeal, in which her address was stated to be the Queen’s Road East Address.  In her supporting affirmation filed on the same date, she claimed that she did not receive any letter from the court. 

12.The applicant’s application for leave to appeal out of time was dismissed by the Judge on 27 July 2022[6].

13.By a summons filed on 28 July 2022, the applicant renewed her application for an extension of time to appeal before this court.  In the summons and in her supporting affirmation, the applicant stated that she disagreed with the Judge’s decision.

14.In her written submissions lodged on 11 August 2022, the applicant repeated the dangers she may face if she returned to her home country.  She also alleged that there were many errors in the decisions which the Judge did not find, without identifying what such errors might have been.

Discussion

15.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.As noted above, the Judge’s Decision was sent to the last known address of the applicant (which at the time was the Wan Chai Road Address) and was not returned undelivered. The inference to be drawn is that she has received that letter from the court, and she has had knowledge of the Judge’s decision within the period during which she should have lodged her intended appeal.

17.There is no explanation on the part of the applicant as to how and when she had come to learn of the Judge’s decision dated 2 June 2022, or the date on which she moved to the Queen’s Road East Address.  It is incumbent upon the applicant to update the court of her correspondence address promptly, and the consequences of her failure to do so must rest with her.

18.In the circumstances, we reject the applicant’s explanation for the delay in lodging her intended appeal.

19.We have nonetheless proceeded to consider the merits of the intended appeal.

20.The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here – the mere statement in her submissions that the Judge failed to note the many alleged (but wholly unparticularised) errors on the part of the TCAB cannot assist her.

23.For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 28 July 2022 is accordingly dismissed.