CUCU-JUWATI v. TORTURE CLAIMS APPEAL BOARD

CAMP 52/2023, [2023] HKCA 829

On appeal from [2022] HKCFI 2139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 52 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 335 OF 2022)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 26 July 2022, Deputy High Court Judge Bruno Chan refused to extend time for the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 19 January 2023, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show any reasonable prospect of success in her intended appeal[2].

3.  On 8 February 2023, the applicant filed the present summons with the Court of Appeal to challenge the decision of the judge on 19 January 2023. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge on 26 July 2022.

4.  The applicant is an Indonesian national. She arrived in Hong Kong on 24 August 2012 to work as a foreign domestic helper but was arrested by the police for theft on 17 November 2014. She was convicted and sentenced to 6 months’ imprisonment. While incarcerated, she raised a non-refoulement claim on 20 January 2015 on the basis that she would be harmed or killed by her two siblings over an inheritance dispute.

5.  By a Notice of Decision dated 18 December 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5], and persecution risk[6].

6.  The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 20 June 2018. The Board found a plethora of inconsistencies in the applicant’s evidence, such as the origin of her inheritance dispute with her siblings. In her non-refoulement claim form, she stated that a property was passed to her under her father’s will, but at the hearing, she said the property was passed to her mother and somehow passed to her when she was seventeen years old, notwithstanding that her mother would still have been alive at the time. There were numerous inconsistencies regarding the details of her dispute with her siblings. The Board found the applicant’s delay to seek non-refoulement protection inconsistent with someone with a genuine fear of harm. For all the above reasons, on 22 August 2018 the Board rejected the entire factual basis of the applicant’s claim and affirmed the Director’s Notice of Decision.

The judge’s decisions

7.  On 13 May 2022, the applicant sought leave to apply for judicial review. The Form 86 stated that the Board’s decision under challenge was dated 18 December 2017. This would appear to be a clerical error, as 18 December 2017 was the date of the Notice of Decision of the Director and the decision of the Board was dated 22 August 2018. The grounds of the applicant’s intended challenge were not specified in the Form 86. She merely stated in her supporting affirmation that she was not satisfied with the Board’s Decision because it is “away from facts and reality” with no specific details and complained of “no transparency” in the Board’s decision.

8.  As the applicant did not ask for a hearing, the judge dealt with her application on paper. Given there was absence of explanation for the delay in bringing the application for judicial review, which was over three years, the judge found there was no good reason for such an extremely serious delay. Having examined the Board’s decision rigorously and with anxious scrutiny, the judge considered there is no error of law or procedural unfairness in the Board’s decision and hence the findings of the Board are not in any respect open to challenge. As there is no realistic prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 26 July 2022.

9.  On 14 October 2022, the applicant issued a summons to seek extension of time to appeal against the judge’s decision of 26 July 2022. She was more than nine weeks late, as the 14-day period to file her notice of appeal expired on 9 August 2022. She explained to the judge she only received his decision in mid-October 2022, when she was already out of time with her intended appeal.

10.  The court record showed that the decision of 26 July 2022 was sent on the same day to the applicant’s reported address but was returned through undelivered post. Upon enquiry with the Immigration Department for her latest address, the decision was re-sent on 5 August 2022 and it was not returned undelivered. The judge was not satisfied she had provided a good or valid reason for the serious delay. On 19 January 2023, he refused to extend time for what appears to be a hopeless appeal and dismissed her summons of 14 October 2022.

The present summons

11.  As mentioned, the applicant renewed her application for leave to appeal out of time against the decision of 26 July 2022 by the present summons issued on 8 February 2023. In this summons, she also sought leave to advance “a new sole ground of appeal”. She also filed a supporting affirmation with a document entitled “statement”.

12.  In her supporting affirmation, the applicant asserted her belief that “merits of this ground of appeal constitute sufficient reason justification” for the court to exercise its discretion in allowing her to appeal out of time.

13.  In the statement, she claimed that if she were to return to “Vietnam” (her home country is Indonesia), she will be tortured, beaten or killed by her two siblings. She reiterated that it is not feasible to change to live in a new location to avoid her siblings, that she would face disadvantage in the labour market as she is not “an active person”, and there is “no guarantee” that she will be able to “adapt to the new place and find a job to earn money to support [herself].” She claimed that the Immigration Department did not consider her human rights under “the Basic Law/Hong Kong Human Rights and Democracy Act/International Covenant on Civil and Political Rights/International Covenant on Economic, Social and Cultural Rights”.

14.  The applicant has not lodged any written submissions. It is not apparent from her supporting affirmation and the statement what is the “new sole ground of appeal” mentioned in her summons.

Analysis and disposition

15.  In considering whether to extend time for appealing against a decision refusing 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.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 26 July 2022. The applicant took out a summons in the court below on 14 October 2022. We agree with the judge that her delay was substantial and unjustified.

17.  As the applicant’s delay is not excusable, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

18.  In assessing the merits of the intended appeal, the court 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.

19.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.  The contentions in the applicant’s affirmation and statement are bare assertions and do not assist her case. There is no justification for the extremely serious delay of more than three years to seek leave to apply for judicial review against the Board’s decision. There is no prospect of success in the applicant’s intended application for judicial review as she has failed to put forward any reasonably arguable ground to challenge the Board’s decision as procedurally unfair or Wednesbury unreasonable. There is no basis to interfere with the judge’s decision of 26 July 2022 in refusing to grant extension of time to apply for judicial review. As rightly observed by the judge, the intended appeal against his decision is hopeless.

21.  For the above reasons, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 26 July 2022 and dismiss the summons filed on 8 February 2023.