TRI WIDAYATI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 242 /2021

[2022] HKCA 484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 242 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 213 OF 2021)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 25 March 2021, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim[1].

2.  On 19 April 2021, the applicant filed a summons for leave to appeal out of time against that decision as the 14-day period to file her appeal ended on 8 April 2021.  The applicant’s summons was dismissed by DHCJ Bruno Chan on 29 June 2021[2].

3.  On 6 July 2021, the applicant filed a renewed application with the Court of Appeal for leave to appeal out of time against the decision of the judge dated 25 March 2021 and for leave to advance a new ground of appeal.

4.  The applicant is a national of Indonesia.  She is 42 years old.  She came to Hong Kong to work as a foreign domestic helper in 2004.  She did not depart after her last employment contract was terminated on 1 March 2015.  She subsequently overstayed and was arrested by the police on 22 July 2015.  She raised a non-refoulement claim on 7 August 2015 on the basis that she will be harmed or killed by her father’s creditor because she could not repay her father’s debt and refused to marry the creditor.

The Director’s decisions

5.  By a Notice of Decision dated 26 October 2015, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.  By a Notice of Further Decision dated 1 February 2017, the Director rejected the applicant’s claim on BOR 2 risk[6] in the absence of response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim. 

The Board’s decision

7.  The applicant appealed against the Director’s decisions to the Board.  She was absent from the hearing scheduled before the Board on 17 March 2017.  A notice was given to the applicant that her appeal would be determined in her absence unless she provided a satisfactory explanation in writing to the Board within 7 days but she did not give any response.  The Board then considered the appeal on paper.  The Board assessed that the alleged ill-treatments did not attain the requisite minimum severity. The Board also considered that the applicant’s problem is a private dispute without any involvement of any public official or political party. Furthermore, the Board held that state protection would be available to the applicant and internal relocation is a viable option to her in Indonesia. Therefore, the Board concluded that the applicant failed to substantiate a case on any of the applicable grounds and dismissed the appeal on 31 October 2017.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 23 February 2021 for leave to apply for judicial review against the decisions of the Director and the Board, after the expiry of the 3-month period for applying for leave to bring judicial review.  She did not put forward any specific grounds for her intended challenge.

The judge’s decision

9.  DHCJ Bruno Chan dealt with the application on paper as the applicant did not request for an oral hearing.  The judge considered that the applicant’s delay of more than 3 years was extremely substantial and the applicant did not provide any explanation for the delay.  The judge further held there was no error of law or procedural unfairness, nor any failure to apply high standards of fairness in the decisions of the Director and the Board.  As there was no prospect of success in the intended judicial review, the judge refused to grant extension of time and dismissed the leave application on 25 March 2021.

Grounds of intended appeal

10.  The applicant stated in her supporting affirmation that the judge’s decision had been reached unfairly without allowing her an opportunity to clarify her case and situation in her country.

11.  Her grounds stated in her written submissions may be summarised as follows:

(1)  High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with her application without properly assessing the credibility of the applicant.

Analysis and disposition

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The applicant took out a summons for extension of time at the court below on 19 April 2021.  She was late for 11 days.

14.  The applicant explained[7] that she was unaware of the legal procedures and time limit.  She further stated that she was informed by the Immigration Officer about the dismissal of her leave application on 13 April 2021 so she did not have enough time to seek legal advice. 

15.  Ignorance of the law is not a reasonable excuse for the delay.  The applicant previously provided the court with the address of the Castle Peak Bay Immigration Centre as her address for service.  The Court sent the judge’s decision by post to the applicant to that address on 25 March 2021 but the mail was subsequently returned[8]. The court was later informed by the Immigration Department of the applicant’s new address and sent the decision to the new address of the applicant on 8 April 2021.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his or her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  As the applicant had failed to file a notice of change of address for service notifying the court of her new address, the reason for her delay is not justifiable.

16.  Leaving aside the lack of justifiable reason for the delay, the court would still assess whether the applicant can show a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application (Re Gurung Min Bahadur [2018] HKCA 226 at §10).

17.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  In the present case, the applicant did not request an oral hearing in the Form 86 she filed.  Pursuant to Order 53 rule 3(3) of the Rules of the High Court, the judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application.  Hence, the judge is entitled to determine the application on paper without holding an oral hearing in this instance.  The applicant’s complaint of unfairness is devoid of merits.  She did not provide any explanation for the substantial delay of more than three years and did not put forward any grounds for her intended challenge.  The judge’s refusal to grant extension of time for her to lodge the leave application was well founded. 

20.  The rest of her grounds are just bare assertions without particulars or evidence in support.  In particular, the Board’s dismissal of the appeal was not based on any adverse finding on the applicant’s credibility.  The applicant failed to adduce any evidence to refute the Board’s finding or to provide any particulars to show that the Board failed to apply high standards of fairness or acted in a procedurally unfair manner.

21.  For the above reasons, there is no prospect of success in her intended appeal. We refuse to grant extension of time to appeal against the judge’s decision of 25 March 2021 and dismiss the summons filed on 6 July 2021.