Re Nurhayati-marbun

CAMP 221/2023, [2025] HKCA 472

On an intended appeal from [2022] HKCFI 3182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 221 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 141/2019)

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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 Bruno Chan (“the Judge”)  dated 13 March 2023 refusing to extend time for the applicant to appeal against his decision dated 17 October 2022 refusing to extend time for the applicant to apply for leave 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 17 October 2017 (“the Board’s Decision”)  dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  dated 27 May 2016 and 14 March 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

Background

2.The applicant is a national of Indonesia.  She entered Hong Kong as a foreign domestic worker on 30 March 2008, but she overstayed after the premature termination of her employment contract, and was subsequently arrested by the police on 3 March 2009.  Thereafter, she lodged a torture claim, which was dismissed on 23 March 2012. 

3.Thereafter, the applicant lodged a non-refoulement claim by way of a written signification dated 5 July 2013.

4.The applicant’s claim was based on a fear of being harmed or killed by her husband.  The details of the applicant’s claim have been summarised by the Judge at [1] to [5] of his decision (“the CALL-1 Form”)[1].

5.By the Director’s Decisions, the Director decided against the applicant’s claim.  The Director’s Decisions covered all applicable grounds other than the torture risk[2], namely the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

6.The applicant appealed to the Board.  After a hearing on 7 April 2017, the Board dismissed the applicant’s appeal by its Decision.  In dismissing the appeal, the Board found on the facts and evidence that the applicant failed to substantiate claims which were material to her case, such as the allegation that her husband had killed her younger sister and father with black magic.  In any event, there was sufficient state protection and viable options of internal relocation (e.g. Jakarta)  available to the applicant to minimise the risk of harm, if any.

The Judge’s decision

7.The applicant filed a Form 86 out of time on 15 January 2019, seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In her supporting affirmation, the applicant merely exhibited a copy of the Board’s and the Director’s Decisions.

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 extend time for the applicant.  The Judge gave the following reasons in refusing to extend time at [12] to [22] of the CALL-1 Form:

“12.  On 15 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the decisions of the Director and the Board, and in her written submissions dated 18 August 2021 she put forward the following grounds for her intended challenge:

(1)  That the Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirement;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3)  That the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board significantly relied on source of news not officially recognized or were simply hearsay or outdated which led to groundless speculation that it is safe for her to return to her home country; and

(6)  That the hearing bundle was provided to her late giving her insufficient time to prepare for her appeal before the Board which caused her confusion and although she answered all the questions honestly yet her credibility was questioned that led her to believe that it was an unfair hearing due to lack of care of the Board for failing to make appropriate arrangements in relation to the hearing bundle.

13.  By then the Applicant was however seriously out of time with her application, as Order 53 rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

14.  As the last day of the three-month period for her to file her Form 86 fell on 17 January 2018, the Applicant was therefore some 12 months late with her application, and in considering whether to extend time, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of 12 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that she was then unrepresented and did not know how anything about legal procedure, and had had to spend much time looking for help, but by the time she was able to do so she was already out of time with her application.

16.  The record shows that the Board’s decision was sent on the same day to the Applicant’s then reported address without being returned through undelivered post, and while I accept that she would need legal assistance with her application, that cannot on any view be accepted as a good or valid reason for her such serious delay. 

17.  As for the merits, if any, of her intended application, those listed grounds for her intended challenge are however all just some broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how would they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair or unreasonable manner, or which source of news that the Board had relied on were unofficially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge, and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by eth Applicant, I do not find any merits in her intended application either.

18.  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.

19.  As for her complaint over the hearing bundle being provided to her late for her appeal hearing before the Board thereby giving her insufficient time to prepare for her appeal, even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her SCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her SCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal, and instead elected not to give any further evidence for her claim. As such I do not find anything amiss over the provision of the hearing bundle to the Applicant for her appeal before the Board, nor do I find it reasonably arguable for her intended challenge either.

20.  Furthermore, the fact is that it has been correctly stablished by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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.

21.  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.

22.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave 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 No.197 Castle Peak Road, Yuen Long (“the 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 Address on 17 October 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 17 October 2022.

11.The applicant thereafter took out a summons in the Court of First Instance on 30 November 2022 seeking extension of time to appeal, in which her address was stated to be the Address.  In the summons and in her supporting affirmation filed on the same date, she claimed that she did not receive the CALL-1 Form in time and that she was only informed of the result of her leave application by her “immigration officer”.

12.The applicant’s application to appeal out of time was dismissed by the Judge on 13 March 2023[6].

13.By a summons filed on 12 June 2023, the applicant renewed her application for an extension of time to appeal before this court.  In the summons, the applicant stated that she wished to appeal against the decision given by the Judge on 13 March 2023, being the Judge’s refusal to grant an extension of time for her to appeal against his decision dated 17 October 2022.  Although in the summons the applicant purported to seek leave to appeal against the decision of the Judge dated 13 March 2023, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 17 October 2022, by which leave for judicial review was refused.

14.In the summons and her supporting affirmation, the applicant merely stated that she disagreed with “the decision maker authorities to determine my case”.

15.In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge any written submissions with the court. She is thus debarred from relying on and lodging the same.

Discussion

16.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.

17.As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Address, which was not returned undelivered.  The inference to be readily drawn is that she has had knowledge of the Judge’s decision within the period which she was permitted to lodge an appeal.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has she explained when she had come to learn of the Judge’s decision.

18.The delay of around 2.5 months in the applicant’s renewal of her application for extension of time before this court was substantial, and the present application is liable to be dismissed on this basis alone.  However, we have nonetheless proceeded to consider the merits of the intended appeal.

19.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. 

20.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 to extend time to apply for leave to bring judicial review proceedings was wrong.  Nor can we discern any such matters.

21.It is well-established that an appeal against a refusal to extend time for judicial review is not a fresh application for extension of time, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

22.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 12 June 2023 is accordingly dismissed.

The applicant acting in person