RE ANITA

CAMP 569/2021

[2022] HKCA 871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 569 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 66 OF 2019)

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J U D G M E N T

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

1.  By a summons dated 20 December 2021, the applicant applied to this Court for extension of time to appeal against the order made by Deputy High Court Judge To (“DHCJ To”)  dated 15 July 2021, refusing her application for leave to apply for judicial review ([2021] HKCFI 2054)  (“Leave Decision”). Her application for extension of time to appeal against the Leave Decision ([2021] HKCFI 3085)  was first previously dismissed by Deputy High Court Judge Suffiad (“DHCJ Suffiad”)  on 27 October 2021 (“EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 28 December 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 13 February 2018 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Indonesia.  She last arrived in Hong Kong on 11 April 2007 and was permitted to remain for employment as a domestic helper until 11 April 2009 or two weeks after termination of contract.  Her employment contract was prematurely terminated on 25 February 2008.  She did not depart and overstayed since 11 March 2008 and was arrested on 12 November 2008.  On 27 November 2008, she raised a torture claim which was rejected by the Director on 21 September 2011.  On 24 May 2013, she lodged a non-refoulement claim on the basis that she would face life-threatening danger posed by her mother’s loan collector and from her husband and the Indonesian society as she had a Nepali boyfriend in Hong Kong.  Details of the applicant’s claim were summarised by DHCJ To at [1] - [3] of the Leave Decision.

5.  By a Notice of Decision dated 13 February 2018, the Director rejected her non-refoulement claim.  His decision covered all applicable grounds except torture risk[1], namely BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  She then appealed against the Director’s Decision to the Board.  The Board heard the appeal on 22 October 2018.  Having assessed the evidence, the Board considered that there was no evidence to support her claim for non-refoulement protection.  The Board also considered that state protection and internal relocation would be available to the applicant upon her return to Indonesia.  Accordingly, the Board dismissed her appeal.

The Leave Decision

7.  On 9 January 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  In the supporting affirmation, she raised the following grounds of judiciary review:

(1)  Procedural impropriety – failure to apply paragraph 2 of the UN Committee against Torture General Comment No 2;

(2)  Procedural impropriety – failure to conduct sufficient inquiry into the relevant Country of Origin Information (“COI”);

(3)  Error/misdirection in law – failure to take into account the psychological strain and threats to the applicant personally or the direct threats to kill her; and

(4)  No sufficient basis to conclude that the applicant would not be at risk of being subjected to torture, etc upon refoulement.

The applicant attended the hearing before DHCJ To on 30 June 2021 and an Indonesian interpreter was present to provide language assistance.

8.  By the Leave Decision, DHCJ To refused her application for leave to apply for judicial review.  His reasons were set out in detail at [14] - [22] of the Leave Decision.  In gist, DHCJ To considered there was no procedural unfairness or error of law in the Board’s Decision.  The applicant’s complaints were merely bare assertions.  The Board had considered and referred to Country of Origin Information (“COI”)  from respected and credible sources and could not be criticised as having failed its duty to conduct sufficient inquiry into the relevant COI.  The Board had also considered her alleged threats and found that they were no more than her own surmise and speculation. The Board’s Decision was not Wednesbury unreasonable or irrational. Accordingly, DHCJ To held that there was no realistic prospect of success in the applicant’s proposed judicial review and refused her application for leave to apply for judicial review.

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 4 August 2021, the applicant filed a summons (“EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, she was six days late with her intended appeal.  In her supporting affirmation, she contended that she did not receive the Leave Decision in time.

11.  By the EOT Decision, DHCJ Suffiad noted that the Court record showed the Leave Decision was sent to the applicant on the same day that the Decision was made to the address she had provided to Court and was not returned through undelivered post.  Further, as the applicant had failed to put forward any proper or valid draft or proposed ground of appeal, it would be futile to extend time for what would appeal to be a hopeless appeal.  Accordingly, her application for extension of time was dismissed.

The Present Application

12.  By a summons and supporting affirmation both filed on 20 December 2021, the applicant reapplied for extension of time to appeal against the Leave Decision.  However, she did not provide any ground of appeal.

13.  Pursuant to the directions given by the Registrar of Civil Appeal dated 20 December 2021, the applicant lodged her written submissions on 3 January 2022.  In those submissions, she repeated the alleged factual basis of her non-refoulement claim and complained that her duty lawyer failed to help her in relation to her non-refoulement claim assessment before the Director.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  Although a delay of six days is not substantial, the applicant has failed to provide any good reason for her delay.  As such, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

16.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.  At the outset, the contentions raised by the applicant are all vague, bare and general assertions and do not identify any errors of the Leave Decision with any particulars.  They do not constitute proper grounds of appeal and the appeal must be dismissed on this basis alone.

18.  As to her complaint in relation to her duty lawyer, this was only raised for the first time in the present appeal.  It appears on the evidence that the applicant did not make any complaint in relation to her duty lawyer whether before the Board, DHCJ To or DHCJ Suffiad.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  As such, her assertion will not be entertained and accordingly, there is no viable ground of appeal.

19.  For the above reasons, her intended appeal has no prospect of success and it will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 20 December 2021 dismissed.