RE YUYUN

CAMP 185/2022

[2022] HKCA 1136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 185 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 812 OF 2020)

__________________________

__________________________

________________

JUDGMENT

________________

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 22 September 2020[1] striking out her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation to support her application. Despite the directions given by the Registrar of Civil Appeals, she has not put in any written submission.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) which rejected her non-refoulement claim.

5.  The applicant is a national of Indonesia aged 43. She first came to Hong Kong in May 2006 to work as a foreign domestic helper. In December 2013, she was arrested by the police in connection with a burglary case, for which she was convicted and sentenced to 12 months’ imprisonment on 14 April 2014. She raised a non-refoulement claim based on fear of being harmed or killed by her husband and his creditor due to her failure to repay her husband’s debt. The details of the applicant’s claim were set out in the decision of the Director dated 17 October 2014 at [6]. We will not repeat them.

6.  By the decision dated 17 October 2014, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], and persecution risk[4] grounds.

7.  The applicant appealed the Director’s decision to the Board. The Board determined the appeal on paper and by its decision dated 12 February 2016, the Board dismissed the appeal.

8.  On 19 February 2016, the applicant filed a Form 86 in HCAL 43/2016 to apply for leave to judicially review both the Director’s decision and the Board’s decision. On 5 December 2016, Chung J refused the application.

9.  Subsequently, on 29 December 2016, the Director wrote to the applicant inviting her to submit additional facts relevant to her non-refoulement claim on all applicable grounds. The applicant did not respond to the invitation. By a further decision dated 7 February 2017, the Director assessed the applicant’s claim under the BOR 2 risk^[5] ground and decided against it. The applicant did not file an appeal to the Board against the Director’s further decision.

10.  On 4 May 2020, the applicant filed a Form 86 together with an affirmation in the action below (i.e., HCAL 812/2020) to make a second application for leave to judicially review the Board’s decision of 12 February 2016. She did not put forward any specific ground for seeking relief. She only stated in the affirmation that her life would be in danger if she returned to her home country.

11.  The Judge considered the application on paper. By a Form CALL-1 dated 22 September 2020, he struck out the application on the grounds that the application was seriously out of time and was also an abuse of process. His reasons were set out in [10] and [11] as follows:

“10. Quite apart from the fact that she would be seriously out of time by more than 3 years, clearly the principle of res judicata applies to this second application of the Applicant, and it is an abuse of process for her to try to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board after she failed to obtain leave from Hon Chung J under HCAL43/2016, and also for failing to inform the registry of the same when she filed her second Form 86 and issued her ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

11. Furthermore, even if one were to assume that in fact she had intended to challenge the Director’s Further Decision regarding her BOR 2 claim instead of the Board’s earlier decision, the Applicant would be procedurally wrong to apply for judicial review without first bringing an appeal to the Board against that Further Decision as required by Part VIIC of the Immigration Ordinance as part of the 2-tier enhanced screening process for non-refoulement claims under the Unified Screening Mechanism (“USM”) in place since March 2014, and it is only after her appeal has been disposed of by the Board that she may apply for judicial review of that decision of the Board.”

12.  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 made.

13.  By a summons filed on 9 December 2020, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge heard the application at an oral hearing held on 22 April 2021. By his decision handed down on 11 May 2022[6], he refused the application.

14.  On 8 June 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

15.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (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.

16.  The applicant was more than two months late when she made the application for extension of time. In the application for extension of time made to the Judge, the applicant explained that she was detained in Castle Peak Bay Immigration Centre and did not know how to go about applying for an appeal. The Judge was not satisfied with the explanation as the record shows that on 22 September 2020 when the Judge’s decision was given, the applicant had already been released from the Immigration Centre. In the present application, the application did not give any explanation for the delay. Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.

17.  In assessing 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].

18.  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.

19.  In the present case, the summons did not set out any ground in support of the application or the applicant’s intended appeal. In the supporting affirmation, the applicant stated that the Judge’s decision was reached unfairly without allowing her an opportunity to clarify her case and situation in her country.

20.  For the reasons set out below, we are of the view that this renewed application has not merits:

(1) What was stated in the affirmation was broad assertions unsupported by particulars. It did not identify in what way was the Judge’s decision unfair. Further, the applicant did not request an oral hearing in her Form 86 or accompanying affirmation, and the Judge was not obliged to hold an oral hearing to hear the application.

(2) The Board’s decision was made in December 2016. The Form 86 in the Court below was filed in May 2020, which was more than three years later. It cannot be disputed that the application for judicial review is seriously out of time. The applicant had given no explanation for the delay.

(3) Further, the applicant had already made an application for judicial review against the Board’s decision in HCAL 43/2016, and it had been refused. The Judge is plainly correct in holding that the present application for judicial review is an abuse of process.

(4) We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

21.  As the applicant’s intended appeal against the Judge’s decision striking out the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 8 June 2022.