RE HARIATININGSIH

CAMP 300/2021

[2022] HKCA 1321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 300 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1348 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 30 April 2021 refusing to extend time for her judicial review application.

2.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 29 August 2016 refusing to allow the late filing of her notice of appeal against the decision of the Director of Immigration (“the Director”) dated 24 August 2015 rejecting her non-refoulement claim.

3.  The applicant has filed an affirmation and lodged a written submission in support of her application.  

4.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.  The applicant is a national of Indonesia aged 42.  She first came to Hong Kong in 1999 to work as a domestic helper.  She last entered Hong Kong on 29 April 2010 with permission to remain to take up employment as a domestic helper.  After Her employment was terminated prematurely in August 2010, she was given permission to remain as a visitor until 7 September 2010.  She overstayed and was arrested by the police on 10 March 2013.  She later made a non-refoulement claim based on fear of being harmed or killed by (i) her husband, and (ii) the moneylenders from whom her husband had borrowed money and has failed to repay.  The details of the applicant’s claim were set out in the Director’s decision dated 24 August 2015 at [6].  We will not repeat them.       

6.  By two decisions dated 24 August 2015 and 13 February 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds, and the further decision dealt with the BOR 2 risk[4] ground.  

7.  Under section 37ZS(1) of the Immigration Ordinance, a non-refoulement claimant may appeal against the Director’s rejection of his claim within 14 days after notice of the decision is given to him.  Where a notice of appeal is filed outside the 14-days’ period, section 37ZT(2) of the Ordinance requires the Board to determine as a preliminary point and without hearing whether to allow the late filing.  Under section 37ZT(3) of the Ordinance that was in force in 2015[5], the Board may allow late filing of the notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal.

8.  The 14 days for the applicant to appeal the Director’s first decision expired on 8 September 2015.  The applicant ‘s notice of appeal was filed with the Board on 23 September 2015, which was 15 days late.  By its decision dated 29 August 2016, the Board refused to allow the late filing of the notice of appeal.  The Board found the delay to be inordinate and inexcusable, and there were no special circumstances that would make it unjust not to allow the late filing of the notice of appeal. 

9.  The applicant has not appealed the Director’s further decision.   

10.  Under Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  Accordingly, the time for the applicant to apply for judicial review of the Board’s decision expired on 29 November 2016.

11.  On 10 July 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decisions.  The applicant did not provide any grounds for seeking relief.  She only stated in the affirmation that she still had problem in Indonesia and she needed to stay in Hong Kong for some more time.

12.  The applicant did not request an oral hearing, and the Judge dealt with the application on the papers. By a Form CALL-1 dated 30 April 2021[6], the Judge refused the application for the reasons he gave at [11] to [24].  Primarily, the Judge found there was no good reason for the serious delay of more than one year and seven months.  As to the merits of the intended judicial review, the Judge pointed out that the Board should have also considered the merits of the applicant’s intended appeal against the Director’s first decision, as required by section 37ZT(2): Re Qasim Ali [2019] HKCA 430.  The Judge was however of the view that in light of the content of the notice of appeal filed with the Board, the intended appeal would not have succeeded.  Applying H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22, AW v Director of Immigration [2016] 2 HKC 393, and TK v Jenkins & Anor [2013] 1 HKC 526, the Judge further held that in light of the very serious delay it would be detrimental to good administration to allow the non-refoulement claim to be re-assessed.  He accordingly refused to exercise his discretion to extend the time for the applicant to apply for judicial review and dismissed the application.     

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was given, which expired on 14 May 2021.

14.  On 17 May 2021, the applicant filed a summons together with a supporting affirmation to apply for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing on 30 June 2021, and by his decision dated 13 July 2021 dismissed the application[7]. 

15.  On 29 July 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

16.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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. 

17.  The applicant was late by three days when she filed the 17 May 2021 summons, which is not substantial. In the application made to the Judge, the applicant explained that she was unrepresented and was not aware of the time limit for appeal until being told by a friend, by which time the 14-days had expired.  Having regard to the short delay and the fact that the applicant is not represented, we are prepared to accept her explanation for the delay.  We would focus on the merits of her intended appeal.           

18.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.  In the present application, the applicant stated in the summons that she came to Hong Kong because her life is in danger in Indonesia and the same level of threat still exists. 

21.  The written submission repeated what was stated in the summons.  It then gave a definition of asylum and set out who may apply for asylum and the documents to be provided when seeking asylum and further quoted from section 37ZO of the Immigration Ordinance, which concerns limitation on making a subsequent torture claim by a claimant who has made a previous torture claim.  It also complained that the Board failed to (i) make sufficient enquiry and to enquire from the Indonesian authorities before finalising its decision; (ii) consider the real fear of Indonesians; and (iii) give reasons for the refusal of her appeal.  It further asserted that there is no justice in Indonesia and the applicant has no faith in the authorities even with a change in the government, and requested to be given assistance from the Duty Lawyer service.     

22.  In our view, the matters put forward by the applicant do not amount to viable grounds of appeal.  In the first place, they are mostly irrelevant to the applicant’s case. For example, the reference to section 37ZO of the Immigration Ordinance is completely misplaced as this is not a case in which the applicant has attempted to make a second torture claim.  Similarly, the complaints made in the written submission do not relate to the Board’s decision.  The Board only refused to allow the late filing of the notice of appeal against the Director’s decision; it had not assessed the merits of the applicant’s claim.  Most critically, the applicant has not pointed to any error in the Judge’s decision that warrants intervention by this Court.   

23.  Having regard to the very serious delay and the circumstances of the case, we do not see any proper basis to disturb the Judge’s exercise of discretion and his decision not to extend the time for the applicant to judicially review the Board’s decision.    

24.  For the above reasons, we are of the view that the applicant’s intended appeal against the Judge’s decision has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 29 July 2021.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] Section 37ZT(3) was amended on 1 August 2021.

[6] [2021] HKCFI 1194.

[7] [2021] HKCFI 2232.