Re Tarsiyem

CAMP 219/2022, [2023] HKCA 1031

On Appeal From [2022] HKCFI 545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 219 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2176 OF 2018)

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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 23 February 2022, DHCJ K.W. Lung (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim and dismissed her leave application (“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.Even taking into account the General Adjournment Period between 7 March 2022 and 11 April 2022, the applicant did not lodge an appeal in time as she did not file a summons in the Court of First Instance for extension of time to appeal against the JR Decision until 22 April 2022.  The summons was dismissed by the Judge on 26 May 2022.

3.On 28 June 2022, the applicant filed her summons in CAMP 219/2022 (“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 28 June 2022, the applicant lodged her written submissions on 8 July 2022.

5.On 13 June 2023, the applicant, without the leave of the court, lodged another written submission.

6.On 3 July 2023, the court received an undated letter from her stating that she would like to close her case and her application.  She said she was free and safe to return to her home country. However, she did not file any application to withdraw her Summons.

7.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

8.The applicant is a national of Indonesia. She last entered Hong Kong on 28 October 2014 with permission to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 5 March 2017.  She did not depart and overstayed.  She was arrested by the police on 19 May 2017.  She raised a non-refoulement claim by way of written representation on 22 May 2017 and 30 June 2017 respectively alleging that if refouled, she would be harmed or even killed by her husband and his creditor.  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2022] HKCFI 545).

9.By a Notice of Decision dated 29 March 2018, the Director of Immigration (“the Director”)  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].

10.The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  and attended an oral hearing on 14 June 2018.  By its decision dated 2 October 2018, the Board dismissed the appeal.  For the reasons set out at [30] to [41], the Board did not find the applicant a reliable witness.  She had no knowledge about the details of her husband’s outstanding loan and at the hearing, she tendered a version of events which she did not disclose in the course of her claim with the Director (i.e. she and her husband were threatened by 14 men in their house threatening that if her husband failed to repay the loan, they would rape and sell the applicant).  The Board found that it was incredible that the applicant would have left out such an important incident if it had really occurred.  The Board did not believe that the applicant would face a real risk of harm or ill-treatment upon her return to her home country. In any event, relevant country of origin information suggested that there is reasonable state protection and internal relocation is a viable option [50] – [54].  For the aforesaid reasons, her non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

11.On 10 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions and in her supporting affirmation, she complained that the Director’s decision was unfair and unreasonable and that her life is in real danger.

The JR Decision

12.The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the Board’s decision as well as the applicant’s grounds of her intended challenge, the Judge refused leave for judicial review for reasons set out in [12] - [17] of the JR Decision:

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

13. 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).

14. 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.”

15. There is no valid challenge from the applicant against the Board’s Decision.

16. 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.

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

Application for extension of time to appeal the JR Decision

13.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 22 April 2022 for an extension of time to appeal.  That was dismissed by the Judge on 26 May 2022.  Hence, the Summons to this court.

Discussion

14.In considering whether to extend time for appeal, 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). 

15.As for (1), the applicant was late by about 10 days between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance after taking into account the general adjournment period.  Her delay was not short but not unduly serious.

16.As for (2), the reasons for the delay, the applicant explained in her supporting affirmation that the court registry was closed and she could not file the notice of appeal.  However, she failed to explain why she did not file her appeal once the court registry reopened. 

17.The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant failed to set out any valid grounds to challenge the Board’s decision nor has she pointed to any error in the JR Decision, save that in her written submissions, she complained that the Judge did not properly consider her application for an extension of time to appeal against the JR Decision.  She further complained that the Director and the Board failed to properly consider relevant matters in her non-refoulement claim and the decisions were illegal.  

18.The complaints made by the applicant in her written submissions are vague and general.  General assertions without particulars cannot be effective grounds to support a judicial review or an appeal from a refusal of leave: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578.

19.It is clear from the Board’s decision that the applicant was not a reliable witness as her evidence was vague and inconsistent. The Board was entitled to reach its findings and conclusion, and the court would only intervene when there is valid public law ground.  We see none in this case.

20.We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse the applicant’s application. 

21.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  We also note the applicant’s request to withdraw her application.  Accordingly, we dismiss the applicant’s summons filed on 28 June 2022.

The applicant, unrepresented, acting in person