RE UMAYAH SAINO

CAMP 428/2022, [2023] HKCA 868

On Appeal From [2021] HKCFI 1783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 428 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2032 OF 2018)

____________________

____________________

____________________

D E C I S I O N

____________________

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

1)  Renewed application for extension of time to appeal

1.  On 26 September 2018, the applicant issued her application for leave for judicial review by Form 86 in HCAL 2032/2018.  The application was out of time by over 6.5 months. The application was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 1 December 2017 which dismissed her appeal against the decision of the Director of Immigration (‘the Director’) dated 21 December 2016 rejecting her non‑refoulement claim.  Deputy High Court Judge Bruno Chan refused to grant extension of time for leave for judicial review on 22 June 2021 and dismissed the application.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 6 July 2021).  Being out of time by about 4.5 months (not counting August 2021 which was the Summer Vacation), the applicant took out an application on 24 December 2021 before the Judge requesting an extension of time to appeal.  The Judge on 14 June 2022 rejected the applicant’s application for extension of time to appeal.

3.  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 (i.e. 21 June 2022).  On 18 October 2022, being about 3 months out of time, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

4.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, 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.

2)  Factual background

5.  Briefly stated, the applicant is an Indonesia national.  She entered and left Hong Kong multiple times since 2007.  She last entered Hong Kong in 2015 and she overstayed.  She raised her non‑refoulement claim on 20 July 2016 alleging that she would be harmed or killed by a man called Kusni and his family whom she was expected to marry in the early 1990s.  She also fears being harmed or killed by her own family.  The applicant has two children out of wedlock with a partner in Hong Kong.

3)  The Director’s Decision

6.  The Director decided against the applicant’s non‑refoulement claim on 21 December 2016.  The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board.  An oral hearing was conducted on 30 October 2017.  The Board dismissed the applicant’s appeal on 1 December 2017 and the Director’s Decision was confirmed.  The Board held that the applicant fabricated her claims in relation to her being forced to marry Kusni.  The marriage was supposed to take place in 1994 and more than 23 years has passed since 1994.  When the applicant failed to show up after two years in Hong Kong, Kusni and her family appeared to have put minimal or no pressure on the applicant or her family to force her to go back and get married.  There were inconsistencies between the applicant’s evidence and her non‑refoulement claim forms.  The Board found that the applicant knew a man called Kusni but she never promised to marry him and he had never shown any interest in marrying her.  The applicant never sent money to Kusni.  Kusni had never threatened the applicant or her family.  There was no real risk of harm if the applicant was to return to Indonesia.

5)  Decisions of the Judge

8.  In his decision dated 22 June 2021, the Judge held that the applicant was seriously out of time for being more than 6.5 months late in making an application for leave for judicial review.  The applicant did not provide reason for the delay.  The Board’s decision was sent to the applicant’s last known address on the same day as the decision.  The applicant provided no proper ground for leave for judicial review.  There was no error of law or procedural unfairness.   

9.  In his decision dated 14 June 2022, the Judge held that the applicant’s explanation for her delay was not acceptable.  The Form CALL‑1 was sent to the applicant’s last reported address without being returned undelivered.  She provided no valid reason for her delay other than alleging that she moved to a new address.  She had herself to blame for not informing the Court of the change of address for the resultant delay.  The Judge held that importantly, the applicant did not put forward any proper grounds of appeal or particulars of error in the Judge’s decision.  There was no prospect of success in the intended appeal.  The application for extension of time for appeal was refused.  

6)  Legal principles

10.  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.

7)  Analysis

(1)     Length of delay and reasons for the delay

11.  Under Order 53, rule 4 of the Rules of High Court, the applicant had 3 months from the Board’s decision to make an application to the Court of First Instance for leave for judicial review.  The applicant was late in making such application by over 6.5 months.  No good reasons were provided for the delay and none of her proposed grounds were reasonably arguable.

12.  The Form CALL-1 decision was handed down on 22 June 2021.  The deadline for the appeal was 6 July 2021.  The applicant was again about 4.5 months late when she filed her extension of time to appeal application on 24 December 2021.  The applicant made a bare assertion that she did not receive the decision in the mail, but the Court record showed that the decision was mailed to her on the same date without being returned undelivered. 

13.  The present summons for a renewed application for extension of time to appeal was filed out of time by about 3 months.  She did not give reasons for her delay.

(2)     Prospect of the intended appeal

14.  In the applicant’s summons and affirmation, the applicant provided no grounds in support of the intended appeal.  In the applicant’s written submissions, the applicant made broad and vague assertions and did not identify any error of the Judge.

15.  In our judgment, the applicant does not have any prospect of success in her intended appeal.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant extension of time for leave for judicial review on two occasions.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons filed on 18 October 2022.