RE ERVINA SUSANTI

CAMP 186/2023, [2024] HKCA 98

On Appeal From [2022] HKCFI 3444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 186 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 979 OF 2022)

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DECISION

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

1) Renewed application for extension of time to appeal

1.  On 21 September 2022, the applicant issued her application for leave for judicial review by Form 86 in HCAL 979/2022. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 18 August 2022 which dismissed her appeal against the decision of the Director of Immigration (‘the Director’) dated 1 June 2022 rejecting her non-refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 11 November 2022.

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 25 November 2022). Being out of time for about 12 days, the applicant took out an application on 6 December 2022 before the Judge requesting an extension of time to appeal. The Judge on 13 March 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 9 May 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  On 17 August 2023, the Appeals Registry received a request from the applicant to ‘close [her] case’.

5.  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, written submissions and request for dismissal of the appeal, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

6.  Briefly stated, the applicant is an Indonesia national. She entered Hong Kong as a foreign domestic helper since 2005. In October 2021, the applicant pleaded guilty to making false representation to an immigration officer. She raised her non-refoulement claim in 2022 making a number of written submissions alleging that she would be harmed or killed by her boyfriend because he could not accept that the applicant had reconciled with her ex-husband and the boyfriend requested the applicant to return all the money that he had provided her.

3) The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 1 June 2022. 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

8.  The applicant appealed against the Director’s Decision to the Board. An oral hearing was conducted on 5 August 2022. The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed. The Board held that the problem the applicant faced was purely a private matter relating to a money dispute. It found that on the totality of evidence, the applicant faces no genuine and substantial risk of being subjected to ill-treatment if refouled to Indonesia. The extent of the applicant’s alleged injuries failed to attain a minimum level of severity. There was no real risk of the applicant being tortured if she was refouled.

5) Decisions of the Judge

9.  In his decision dated 11 November 2022, the Judge held that no ground for seeking relief was stated in the applicant’s Form 86 or affirmation. There was no error of law or procedural unfairness.

10.  In his decision dated 13 March 2023, the Judge held that the applicant’s explanation that she was detained at Castle Peak Bay Immigration Centre correlated with the assertion that she did not receive the decision on time, but it was the applicant’s duty to keep the Court updated with her change of correspondence address. Given the delay was insignificant the Court focused on the merits. The Judge held that 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

11.  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

12.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

13.  The Form CALL-1 decision was handed down on 11 November 2022. The deadline for the appeal was 25 November 2022. The applicant was about twelve days late when she filed her extension of time to appeal application on 6 December 2022. The Judge focused on the merits of her case.

(2) Prospect of the intended appeal

14.  In the applicant’s summons and affirmation, the applicant stated that she was late due to her detention. In her written submissions, she made a bare assertion that the Judge did not consider her extension application. She also alleged that her ‘wife and children’ also remain in Hong Kong.

15.  In our judgment, the applicant does not have any prospect of success in her intended appeal.

16.  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. Her claim that her ‘wife and children’ are in Hong Kong is not a relevant matter for the Judge’s consideration.

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

8) Disposition

18.  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 9 May 2023.

19.  We would also dismiss the applicant’s summons filed on 9 May 2023 in accordance with the applicant’s request for dismissal of appeal.