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CAMP 534/2021
[2022] HKCA 704
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 534 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO 2732 OF 2018)
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FITRI KRISTIANA |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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Before: Hon G Lam and Chow JJA in Court
Date of Judgment: 30 May 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 25 November 2021, the Applicant took out a summons to apply for “leave to appeal” out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 9 November 2021 refusing to grant to the Applicant an extension of time to appeal against his earlier order dated 28 June 2021 refusing leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 12 April 2018
2. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
3. The Applicant is a national of Indonesia. She came to Hong Kong on 27 August 2014 as a domestic helper but her employment contract was terminated prematurely. She overstayed and was arrested by the Police. She lodged her non-refoulement claim with the Immigration Department on 29 May 2015, claiming that, if refouled, she would be harmed or killed by her husband because she wanted to divorce him and refused to support him financially. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.
4. By a Notice of Decision dated 23 November 2017, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on the following applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
5. The Applicant appealed the Director’s decision to the Board. On 12 April 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).
6. The Board found that the Applicant did not tell the truth in relation to her claims that she was harmed or assaulted by her husband, and did not accept that the Applicant’s relationship with her husband had broken down for the reasons claimed by her (see Board’s Decision at §§65-66). The Board concluded that there was no real risk that the Applicant would face any of the proscribed forms of harm should she return to Indonesia.
THE JUDGE’S DECISION
7. On 3 December 2018, the Applicant filed her Form 86 seeking leave to apply for judicial review of the Board’s Decision.
8. On 28 June 2021, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§15-17 of Form CALL-1, the Judge stated as follows:
“15. Her reasons in support of her application do not assist her.
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 reasonable prospect of success in her proposed judicial review.”
9. On 9 November 2021, the Judge dismissed the Applicant’s summons of 21 October 2021 seeking an extension of time to appeal against his earlier order of 28 June 2021.
THIS APPLICATION
10. By a summons taken out on 25 November 2021, the Applicant applied for “leave to appeal” out of time against the order of the Judge dated 9 November 2021.
11. In her summons and supporting affirmation, she stated that the Court and the Board disregarded her dangerous situation.
12. The Applicant has failed to lodge any written submissions in support of her application, contrary to the directions of the Registrar of Civil Appeals dated 25 November 2021.
DISCUSSION
13. Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.
14. In deciding whether to grant an extension of time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
15. The prospect of success of an intended appeal is important. The court will not grant extension of time for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
16. The court’s 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.
17. Other than a bare assertion that the Court had disregarded her dangerous situation, the Applicant has not pointed to any error in the Judge’s decision dated 28 June 2021, or raised any viable ground of appeal against the Judge’s decision. There is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
18. The application for extension of time to appeal is refused, and the Applicant’s summons of 25 November 2021 is dismissed.
(Godfrey Lam)
Justice of Appeal
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(Anderson Chow)
Justice of Appeal
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The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] 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.
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