RE SRI LESTARI

CAMP 486/2021

[2022] HKCA 620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 486 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2785 OF 2018)

________________________

________________________

________________________

D E C I S I O N

________________________

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

I.  Renewed application for extension of time to appeal

1.  On 6 December 2018, the applicant issued her application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 13 November 2018 dismissing her appeal against the decision of the Director of Immigration (‘the Director’)  dated 27 April 2018 rejecting her non-refoulement claim. 

2.  In his decision of 12 May 2021, Deputy High Court Judge To dismissed her application for leave to apply for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time by about 26 days, the applicant took out an application on 22 June 2021 requesting an extension of time to appeal.  Deputy Judge K W Lung on 21 September 2021 rejected the applicant’s application.    

4.  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. by 28 September 2021).  On 26 October 2021, the applicant filed the present summons out of time by almost one month to make a further application to this Court for extension of time to appeal. 

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 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

6.  The applicant is an Indonesia national.  She entered Hong Kong initially as a foreign domestic helper working under an employment contract in January 2013.  After her contract was prematurely terminated, she went back and forth between the Mainland and Hong Kong.  She then came to Hong Kong to start working under a second employment contract in March 2013 which again was prematurely terminated.  She then continued to apply for visitor status until 30 May 2013.  She overstayed since 31 May 2013.  The applicant raised her non-refoulement claim in February 2016 on her fear that she would be harmed or killed by her husband’s creditors as she was unable to repay her husband’s debts.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 27 April 2018.  The Decision covered 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 on 7 May 2018.  An oral hearing was conducted on 13 August 2018.  The Board dismissed the applicant’s appeal on 13 November 2018 and the Director’s Decision was affirmed.  The Board had serious doubts about the credibility of the applicant’s claims.  It did not accept that her husband had incurred a debt which she was required to repay.  The Board did not accept that the applicant will face a real chance of harm, and her claim failed on all applicable grounds.

5)  Decisions of the Judges

9.  In his decision dated 12 May 2021, Judge To held that the applicant did not advance any specific ground for her application.  The Board found that there was no factual basis to support the applicant’s claim.  There was no error of law or procedural unfairness, unreasonableness, or irrationality in the Board’s decision.   

10.  In his decision dated 21 September 2021, Judge K W Lung held that the applicant did not raise any viable ground to show that either the Board was in error or the Court was in error.  There was no realistic prospect of success. 

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.  The applicant was about 26 days late when she filed her extension of time to appeal application on 22 June 2021.  The lateness was substantial.  Due to the serious delay, 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

13.  In the applicant’s summons and affirmation, she simply asked for extension of time without any explanation on why she was late.  In her written submissions, she asked the Court to save her life from her enemies.

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

15.  Judge To had considered all the relevant matters including the merits of the applicant’s case when he refused leave to apply for judicial review.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decision of Judge To, 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 dated 26 October 2021.