RE INDAH AYU YULIANINGSIH

CAMP 32 /2023, [2024] HKCA 130

On Appeal From [2022] HKCFI 1677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 32 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 257 OF 2022)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1) Renewed application for extension of time to appeal

1.  On 25 April 2022, the applicant issued her application for leave to apply for judicial review by Form 86 in HCAL 257/2022. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 1 March 2022 (mistakenly stated by the applicant to be dated 3 March 2022) which dismissed her appeal against the decision of the Director of Immigration (‘the Director’) dated 4 January 2022 rejecting her non-refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave on 6 June 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 20 June 2022). Being out of time for about three months, the applicant took out an application on 19 September 2022 requesting an extension of time to appeal. The Judge on 28 December 2022 rejected the applicant’s application for extension of time to appeal.

3.  On 27 January 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

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

2) Factual background

5.  Briefly stated, the applicant is an Indonesia national. She entered Hong Kong legally and stayed as a foreign domestic helper. She raised her non-refoulement claim by way of written representations dated 19, 22 and 27 October 2021 alleging that she would be harmed or killed by her creditors because she could not repay her father’s debt.

3) The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), BOR Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

7.  An oral hearing was conducted by the Board on 11 February 2022. The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed. The Board held that there was no basis for the applicant’s fear because it is a case of loan dispute between the applicant and the father’s creditors. There was nothing in the evidence to suggest that the definition of torture was fulfilled in her case. The Board also found that internal relocation was available to her.

5) Decisions of the Judge

8.  In his decision dated 31 March 2022, the Judge held that no ground for seeking relief was stated in the applicant’s Form 86 or affirmation, nor did she seek for an oral hearing. There was no error of law or procedural unfairness.

9.  In his decision dated 28 December 2022, the Judge held that the applicant’s explanation for her delay was not acceptable. The court record showed that the decision was first sent to the applicant’s reported address at the Castle Peak Bay Immigration Centre where she was being detained, but it was returned as she had since been released. Upon enquiry with the Immigration Department, the decision was then sent to her latest reported address without being returned. In the absence of further explanation from the applicant to corroborate her assertion that she only received the decision in September 2022, the Judge was not satisfied there was good reason for the delay. The Judge held that importantly, the applicant did not put forth any valid grounds of appeal. There was no prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6) Legal principles

10.  In considering whether to extend time for appeal, the Court will have regard to :

(1) length of the delay;

(2) reasons for the delay;

(3) prospect of the intended appeal; and

(4) prejudice to the putative respondent if extension of time was granted.

7) Analysis

(1) Length of delay and reasons for the delay

11.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

12.  The Form CALL-1 decision was handed down on 6 June 2022. The deadline for the appeal was 20 June 2022. The applicant was about three months late when she filed her extension of time to appeal application on 19 September 2022. Even if it was accepted that the applicant had changed her address, the court record showed that on 5 July 2022 the Court had re-sent the decision to her latest reporting address and the deadline to appeal was 14 days from that date. The applicant did not provide any proper explanation that she only received the decision in September 2022.

(2) Prospect of the intended appeal

13.  In the applicant’s present summons, the applicant merely stated that it was a summons filed for her renewal application. In her affirmation, the applicant stated that she disagreed with the decision makers. She stated that she did not think her case was determined fairly, and that she did not know court procedure. In her written submission, the applicant made many bare assertions without explanation, including :

i) She did not know thoroughly how the case was determined so it was not easy for her to appeal the decision. However, the applicant did not request a hearing before the Judge to explain her case.

ii) She was never provided with legal and language assistance. This point was not previously mentioned.

iii) She urged the authorities to take into account ‘real procedural unfair throughout the case’. This is broad and vague without any specificity.

iv) She had not been fully informed of her right or given opportunity to be heard with such assistance. This is factually incorrect as she gave evidence before the Board.

v) At the time when she applied for judicial review she was in custody in the detention centre and she was not aware that she needed to inform the Court of her change of address. This is irrelevant because the applicant was not late when she applied for leave for judicial review. She was only out of time during the 14 day appeal period from the decision of 6 June 2022.

14.  In our judgment, the applicant does not have any prospect of success in her intended appeal.

15.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8) Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 27 January 2023.