RE NOVA LIYASANTI

CAMP 340/2022, [2023] HKCA 951

On Appeal from [2022] HKCFI 591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 340 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1635 OF 2019)

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JUDGMENT

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Hon Chu VP (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 P Li (“the Judge”) dated 28 February 2022[1] which dismissed her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also lodged a written submission to support her application.       

3.  Under Order 59 rule 14A(1) 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 applicant’s summons and affirmation, 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 40.  She last entered Hong Kong in August 2006 and was given permission to remain to work as a foreign domestic helper.  After her contract was prematurely terminated in August 2018 and her extension of stay expired on 4 September 2008, she overstayed.  On 18 November 2009, she was arrested by the Immigration Department.  On 27 November 2009, the applicant lodged a torture claim^[2], which was rejected on 2 February 2012.  By way of written representation on 31 July 2017, she raised a further non-refoulement claim based on her fear of being harmed or killed by a creditor named Firdaus, or being forced to marry him, due to an outstanding debt.  The background and details of the applicant’s claim were set out in the decision of the Director at [10].  We will not repeat them.     

6.  By a decision dated 31 January 2018, the Director rejected the applicant’s claim having regard to the BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.There was no assessment under the torture risk ground in view of the rejection of her previous torture claim.

7.  The applicant appealed the Director’s decision to the Board.  The Board heard the appeal on 18 and 27 March 2019, during which the applicant elected to give evidence and answered questions put by the Board.  By its decision dated 6 June 2019, the Board dismissed the appeal.  The Board discussed extensively the applicant’s evidence and her claim of her previous dealings with her creditor, spanning over 10 pages at [35] to [71] in the decision.  On the totality of the evidence, the Board found her evidence was self-contradictory, inconsistent with her account given to the Director and inherently implausible.  The Board did not accept that she and her family were indebted to Firdaus, she was raped by him as a child or had been harmed by him in any way in the past.  The Board did not accept there was a real risk of harm of any type to the applicant in the reasonably foreseeable future for any of the reasons she claimed if she were to be refouled to Indonesia.  The Board concluded that the applicant failed to establish her entitlement to non-refoulement protection under any of the applicable grounds. 

8.  On 14 June 2019, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  She did not provide any grounds for relief, other than stating in her supporting affirmation that her life would be in danger if she were to return to her country.    

9.  The Judge listed the application for hearing on 24 January 2022.  The applicant did not attend. The Judge therefore proceeded to consider the application on paper.  By a Form CALL-1 dated 28 February 2022, the Judge refused the application for the reasons he gave at [21] and [22] as follows: 

“21. The adjudicator had analyzed her evidence in detail. She had put the doubtful points to the applicant. She was given ample opportunities to explain. The adjudicator was not satisfied with her reasons. There were significant inconsistencies which undermined her credibility. I agree with the findings of the adjudicator. In my view, there is no error of law and procedure. I also find that the TCAB decision reasonable.”

“22. In my judgment, the leave application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.”

10.  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. 

11.  By a summons filed on 6 July 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge To dealt with the application on paper, and by his decision handed down on 2 September 2022[6] refused the application. 

12.  On 8 September 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.

13.  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. 

14.  The applicant was over three months late when she made the application for extension of time.  This is a substantial delay.  In the summons filed in the court below, she explained she did not receive the court documents and it was until early July 2022 that she learnt from the immigration officer the outcome of her case.  She also stated that she had poor command of written English and Chinese, did not understand the judicial system of Hong Kong and needed to ask for help, which she eventually received from an NGO. 

15.  We do not consider the substantial delay to have been satisfactorily explained.  As DHCJ To observed at [3] to [6] of his decision, it was the applicant’s failure to report her change of address to the court which resulted in the court documents not reaching her in a timely manner.  In that regard, as this Court has repeatedly held, it is a litigant’s duty to inform the court of changes in address for service or receiving communications from the court: see, for example, Re Hasmi Rizwan Imran [2018] HKCA 439 at [15].  In light of her substantial and inordinate delay, the applicant must show that her intended appeal enjoys a real prospect of success.

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

17.  In the present case, the applicant did not provide any grounds for her application or the intended appeal in either the summons or the supporting affirmation.  She merely stated that the Court disregarded the dangerous situation in her home country. 

18.  In the written submission, the applicant stated the following:

(1)  Given her history of being attacked, there is a genuine possibility that she her life would come under threat if she were returned to her home country.  As such, she is subject to BOR 2 risk.

(2)  There is inadequate state protection in Indonesia as women and men do not enjoy unequal status.  In view of the high rate of gender-based violence in Indonesia, she will face serious problems even though her claim is private in nature.

(3)  Until recently after receiving help, she has been suffering from her traumatic past in Indonesia and.

(4)  The Judge was wrong to be sceptical of the inconsistencies in her evidence given to the Board.  She was traumatised by the past events and had difficulties recalling minute details of her claim or express herself clearly.

19.  For the reasons set out below, we are of the view that this renewed application has no merits:

(1)  What was stated in the written submission were new assertions that were not raised in the application before the Judge.  It is well established that it is not permissible for a litigant to raise new, and especially fact-sensitive, grounds on appeal.

(2)  In any event, what was stated in the written submission were broad, general assertions unsupported by particulars or evidence.  In particular, her assertion that there is inadequate state protection has no evidential support.  Likewise, the factual assertions in her written submission are not borne out by the evidence before the court. 

(3)  More importantly, the applicant failed to identify, still less to demonstrate, that there was error of law, irrationality or procedural irregularity in the Judge’s decision. 

20.  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.

21.  As the applicant’s intended appeal against the Judge’s decision 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 September 2022.