RE SARI ERI AELLIA

CAMP 127/2019

[2019] HKCA 1272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 127 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 296 OF 2017)

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D E C I S I O N

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

1)  Renewed application for extension of time to appeal

1.1  On 15 June 2017, the applicant issued her application for leave for judicial review by Form 86.

1.2  The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 6 June 2017 dismissing her appeal against the decision of the Director of Immigration (‘the Director’) dated 29 August 2016 rejecting her non-refoulement claim.  The application was filed within time.

1.3  On 25 August 2017, Deputy High Court Judge Woodcock dismissed the applicant’s application.  

1.4  The applicant was entitled to appeal against the Judge’s refusal as of right.  If she did not do so within the 14-day period specified by law, she had to obtain an order for extension of time to appeal.  Being over 15 months out of time, the applicant issued an application on 2 January 2019 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 20 May 2019 rejected the applicant’s application for an extension of time to appeal.  

1.5  On 14 June 2019, the applicant by summons issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paras 3 to 8.

1.6  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application like the present one without an oral hearing.  Having considered the summons, affidavit and written submissions filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

2.  Briefly stated, the applicant is an Indonesian national.  She came to Hong Kong to work as a foreign domestic helper at the end of September 2010.  Upon expiry of her employment contract, she was supposed to return to Indonesia but she remained illegally in Hong Kong.  She gave birth to a son.  She subsequently raised a non-refoulement claim based on her fear that if she and her son were to return to Indonesia, their lives would be in danger because her son was born out of wedlock and secondly, the applicant had converted from Islam to Christianity.

3)  The Director’s Decision and the Director’s Further Decision

3.1  The Director decided against the applicant’s non-refoulement claim on 29 August 2016.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2  By a Further Decision of the Director dated 3 January 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant, and decided against the applicant.

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board.  The oral hearing was conducted on 8 May 2017.  The Board dismissed the applicant’s appeal on 6 June 2017.  In gist, the Board held:

‘ 39. The appellant’s reliance on magic, her inability to provide coherent, detailed and consistent evidence in relation to the breakdown of her first marriage and her failure to provide any real evidence at all about her assertion she has converted to Christianity, as well as the fact that she would not be returning to Indonesia with a child, lead me to conclude she has failed to discharge even the very light burden upon her in establishing the facts of her claim.’

5)  Decisions of the Judge

5.1  As stated earlier, the Judge refused to grant leave for judicial review.  She went through a detailed analysis of both the Director’s Decision and the Board’s Decision.  No error of law or procedure was found. 

5.2  The application for extension of time was listed for hearing on 13 February 2019.  In her decision dated 20 May 2019, the Judge held that it was not the duty of the first instance court to reconsider the applicant’s claims, but to consider whether the Board has made an error of law or whether there is procedural unfairness.  The Judge held there was no merit nor any real prospect of success if an appeal was to be heard.

6)  Legal principles

6.1  In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

6.2  Likewise the same consideration will apply to the present application for extension of time.  We will consider the merits of her intended appeal against the Judge’s decision of 25 August 2017 having regard to the above consideration.

7)  Analysis

(1)   Length of delay and reasons for the delay

7.1  The applicant was more than 15 months late when she filed summons in the court below for extension of time to appeal.  It was a substantial delay.  Therefore, the intended appeal must satisfy real prospect of success before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

(2)  Prospect of the intended appeal

7.2  In our judgment, the applicant does not meet that threshold.  Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

7.3  The applicant stated in her present summons and affidavit that she would like an extension because she needs to take care of her son who is in school in Hong Kong.  No particulars were provided by the applicant.

7.4  In her written submissions, the applicant essentially repeated her factual background information.  She stated that she was being pressured by a loan shark.  She feared that if she returned she would be ostracized as her community views her as having committed adultery, and her son was born out of wedlock.  She stated that the Board was wrong because it did not apply convention principles against a child.  In summary, there was not a single complaint against the decision of the Judge.

7.5  We are of the view that the most important consideration in an extension of time to appeal application is whether there are merits in the intended appeal.  There are no merits in the applicant’s case.  She has not identified any error of law or procedural unfairness in the decision of the Judge.

8)  Disposition

8.  As the intended appeal is unarguable, it will be futile to grant any extension of time.  Accordingly, we will dismiss the applicant’s summons dated 14 June 2019.