RE MUSRIATUN

CAMP 373/2022, [2024] HKCA 713

On Appeal From [2022] HKCFI 1827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 373 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1111 OF 2019)

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J U D G M E N T

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

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 29 June 2022 refusing to grant the applicant leave to apply for judicial review ([2022] HKCFI 1827)  (“the Leave Decision”). An earlier application for extension of time to appeal was refused by the Deputy Judge on 23 September 2022 ([2022] HKCFI 2833)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 29 March 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 27 September 2018 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Indonesia.  She entered Hong Kong in November 2014 to work as a foreign domestic helper.  Her employment contract was terminated prematurely six months later.  She did not depart and overstayed.  On 22 August 2015, she was arrested by the police.  On 27 August 2015, she was convicted of the offences of breach of conditions of stay by overstaying and taking up unapproved employment and was sentenced to imprisonment for two months and two weeks.  She lodged a non-refoulement claim by way of two undated written representations received by the Immigration Department on 10 September 2015 and 22 September 2015 respectively on the basis that if refouled, she would be harmed or killed by her abusive husband Candra Dwi Nuramin.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  On 7 March 2019, she attended an oral hearing before the Board.  On 29 March 2019, the Board dismissed her appeal and confirmed the Director’s Decision.  Having considered her evidence, the Board disbelieved the applicant and found her evidence inherently contradictory.  The Board considered that material aspects of her case had been incredible and unreliable, in particular, in relation to her parents using their house as security for obtaining loan to her husband who was a drug addict and her husband’s threat to her parents when her husband was afraid of her father and two elder brothers.  The Board further held that state protection and internal relocation were both available to the applicant. Accordingly, the Board found that the applicant failed to substantial on all applicable grounds and dismissed her appeal.

The Leave Decision

7.  On 25 April 2019, the applicant filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  No ground of review was provided in her Form 86 or supporting affirmation.  As the applicant did not request any oral hearing, the Deputy Judge considered her application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [14] - [20] of the Leave Decision:

“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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16. 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.’

17. The facts of her case had been considered by the Director and Board. There is no valid grounds to challenge the Board’s Decision.

18. 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.

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

CONCLUSION

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

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 26 August 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, she was over six weeks late with her intended appeal.  In her supporting affirmation, she explained that she did not receive the Leave Decision from the High Court.

11.  By the EOT Decision, the Deputy Judge noted from the court record that the Leave Decision was sent on the same day of the Leave Decision to the applicant by ordinary post at her last known address without being returned.  Further, as the applicant had not been able to identify in what respect the Board or the Deputy Judge had erred in their respective decisions in assessing her case, there was no realistic prospect of success in her intended appeal.  Accordingly, the Deputy Judge dismissed her application for extension of time to appeal.

The Present Application

12.  By a summons and a supporting affirmation both filed on 23 September 2022, the applicant reapplied for extension of time to appeal.  She did not provide any viable grounds of appeal in the summons or supporting affirmation, but only stated in the summons that she “would like to challenge the decision”.

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 23 September 2022, the applicant lodged her written submissions on 5 October 2022.  In those submissions, she repeated the factual basis of her non-refoulement claim.  She reiterated that she could not go back to her husband because her husband always harassed her and she could not repay the debt owed by her husband.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  We consider that the applicant’s delay of over six weeks was substantial and the applicant simply failed to give any good reason for this delay.  As such, this court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

16.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge in the Leave Decision.  General and bare assertions on her fear if refouled to her home country do not constitute valid grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  As such, her intended appeal is plainly a non-starter and must fail.

18.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 23 September 2022 is dismissed.