RE AISAH

CAMP 377/2022, [2023] HKCA 735

ON APPEAL FROM [2022] HKCFI 101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 377 OF 2022

(ON APPEAL FROM HCAL NO. 1673 OF 2021)

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J U D G M E N T

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

I. Renewed application for extension of time to appeal

1.  On 17 November 2021, the applicant issued her application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 4 November 2021 which dismissed her appeal against the decision of the Director of Immigration (the ‘Director’)  dated 13 August 2021 rejecting her claim for non-refoulement protection.

2.  In his decision of 6 January 2022 (the ‘Decision’), Deputy High Court Judge Bruno Chan refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision.  Being out of time, the applicant took out an application on 14 February 2022 before the Judge requesting an extension of time to appeal.  The Judge on 7 September 2022 rejected the applicant’s application.

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 26 September 2022 (late for more than one week), the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1)  of the Rules of the High Court, 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.

II. Background

6.  The applicant is a national of Indonesia who last arrived in Hong Kong on 6 March 2018 with permission to work as a foreign domestic helper.  When her last employment contract expired on 11 March 2021, she overstayed.  On 18 April 2021, she was arrested by the police for the offences of soliciting for an immoral purpose and breach of condition of stay, for which she was convicted and sentenced to prison for two months.  Upon her discharge from prison, she was referred to the Immigration Department for deportation.  She then raised a non-refoulement claim on the basis that if returned to Indonesia she would be harmed or killed by the creditors of her former husband and/or her mother over their unpaid debts.

7.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of the Decision.

III. The Director’s Decision

8.  The Director decided against the applicant’s claim on 13 August 2021.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as her other statutory and convention rights against torture and persecution (the ‘Director’s Decision’).

IV. The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 21 October 2021, the Board dismissed the applicant’s appeal on 4 November 2021 (the ‘Board’s Decision’).

10.  The Board accepted the applicant’s evidence of certain debts problems but rejected her claim of fear of harm given the inconsistencies and implausibility in her case.  Moreover, given the dispute is private in nature without official involvement, the Board found that state protection and internal relocation would be available to the applicant.  The Board therefore found that the applicant’s claim failed on all applicable grounds.

V. Decision of the Judge

11.  The applicant filed a Form 86 and a supporting affirmation on 17 November 2021. She did not put forward any ground for seeking relief in her Form 86 or her supporting affirmation.

12.  The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

13.  Even though the applicant did not identify any error of law, irrationality or procedural unfairness in the proceedings before the Board or its decision, the Judge considered the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny.  The Judge did not find any error of law or procedural unfairness, nor any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises, the Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and accordingly refused the leave application.

14.  In his decision of 7 September 2022, the Judge considered the delay of more than three weeks substantial and inordinate.  The Judge was not satisfied that the applicant had provided any good or valid reason for the serious delay.  More importantly, the Judge found there was no prospect of success for the intended appeal.  The Judge therefore refused the applicant’s application for extension of time to appeal.

VI. Legal principles

15.  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.

VII. Analysis

1)  Length of delay and reasons for the delay

16.  The applicant was late for over three weeks when she filed her application for extension of time to appeal before the Judge.  Her renewed application to this Court was again late by more than one week.  The applicant only claimed in her summons for the renewed application that she did not receive the Court’s letter on time.  The explanation is unsatisfactory.  Nevertheless, we shall focus on the merits of this case.

2)  Prospect of the intended appeal

17.  The applicant did not provide any proposed grounds of appeal.  In her affirmation, she simply claimed that she did not agree with the Judge’s decisions.  In her written submissions, she repeated her claim that her enemy in Indonesia tried to kill her and complained that the adjudicator failed to consider her ‘life’ and made her a ‘laughable person’.

18.  This ground was raised for the first time before us and not pursued before the Judge.  In any event, it is devoid of merits.  Both the Director and the Board have carefully considered, amongst others, the BOR 2 Risk being risk of violation of the right to life.  The applicant did not elaborate on how the adjudicator’s decision made her a ‘laughable person’.  We agree with the Judge that, reading the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny, there was no error of law or procedural unfairness, nor any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.  We agree with the Judge that there is no prospect of success in the intended appeal.  The Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

20.  Furthermore, the Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

21.  In the present case, the applicant has not identified any proper grounds of appeal or errors committed by the Judge.  The intended appeal is completely devoid of merits.

VIII. Disposition

22.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 26 September 2022.