RE NIKMATURODIYAH

CAMP 56/2021

[2021] HKCA 888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 56 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 782 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 4 June 2020 refusing to extend the time for her to apply for leave to apply for judicial review.

2.  The applicant had filed an affirmation and lodged a written submission dated 8 April 2021 in support of her application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons, the affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 8 December 2017 dismissing her appeal against the decisions of the Director of Immigration (“the Director”) dated 8 September 2016 and 1 August 2017 rejecting her non-refoulement claim.

5.  The applicant is a national of Indonesia aged 43.  She first came to Hong Kong in 2003 to work as a foreign domestic helper.  Her employment was terminated on 9 December 2013 after her arrest by the police in 2013 for trafficking in dangerous drug, for which she was convicted and sentenced to 22 months’ imprisonment on 18 March 2014.  After her release from prison, she raised a non-refoulement claim in 2016. 

6.  The applicant’s claim is based on her fear of being harmed or killed by (1) her family for committing the criminal offence which has brough disgrace to them; and (2) her creditor due to her failure to repay her loan.  The details of the applicant’s claim were set out in the decisions of the Director and the Board.  We will not repeat them.

7.  By two decisions dated 8 September 2016 and 1 August 2017, the Director rejected the applicant’s claim.  The first covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds and the further decision covered the BOR 2 risk[4] ground.

8.  The applicant’s appeal to the Board was heard on 20 October 2017.  By its decision dated 8 December 2017, the Board dismissed the appeal.  In gist, the Board had doubts about some aspects of the credibility and reliability of the applicant’s claim.  It also held that on the evidence presented by the applicant, none of the applicable grounds is made out.  The Board concluded that the applicant was not entitled to non-refoulement protection on any of the appliable grounds.

9.  Under Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason to extend the time for bringing the application.  The time for the applicant to apply for judicial review of the Board’s decision expired on 8 March 2018.   

10.  On 4 May 2018, the applicant filed a Form 86 in HCAL 782/2018 to apply for leave to judicially review the Board’s decision.  The applicant was late by about two months.

11.  The applicant explained that she did not receive the Board’s decision and only came to learn about it when she was told by the immigration officer.  She put forward six grounds for seeking relief, namely, (1) the Board had unlawfully fettered its decision in refusing the applicant’s appeal on the grounds that she did not satisfy the requirements; (2) the Board acted in a procedurally unfair manner in dealing with the appeal: (3) the Board’s decision was unreasonable or irrational in the public law sense or is the result of procedural errors or unfairness; (4) the Board failed to meet the greater care and duty owed to a self-represented claimant; (5) the hearing bundle, which was mostly in English, was provided to the applicant late and without translation, such that there was insufficient time for the applicant to prepare for the appeal; and (6) the Board significantly relied on source of news that was not officially recognized, was hearsay or outdated resulting in groundless speculation that it would be safe for the applicant to return to her country.  

12.  By the Form CALL-1 dated 4 June 2020[5], the Judge refused to extend the time and dismissed the application for leave to apply for judicial review.  Principally, the Judge found there was no good reason for the delay.  The Judge also considered the applicant’s grounds to be mostly broad and vague assertions unsupported by particulars.  With regard to the complaint about the late provision of the hearing bundle before the Board, the Judge held there was no real prejudice or unfairness since the majority of the documents (e.g., the non-refoulement claim form, the record of the screening interview and the Director’s decisions) were familiar to her.  The Judge concluded that the intended judicial review had no reasonable prospect of success as there was no errors of law, irrationality or procedural irregularity in the Board’s decision.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day for the applicant to appeal the Judge’s decision of 4 June 2020 expired on 18 June 2020. 

14.  By summons filed on 5 August 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 22 October 2020, and by his decision handed down on 1 December 2020[6] refused the application. 

15.  On 16 February 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  

16.  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. 

17.  The applicant was late by about seven weeks, which is not insignificant.  She gave no explanation for her delay in the present application.  At the hearing before the Judge, she explained that she was afraid to go out in light of the public health situation due to the pandemic.  We agree with the Judge that this does not constitute good reason to justify the delay.  In the absence of good reason to explain the delay, the applicant has to show that her intended appeal has a real prospect of success. 

18.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.  In the present application, the applicant did not set out any proposed ground of appeal in her summons and supporting affirmation.  She only stated that she was not satisfied with the decision.  In her written submission, the applicant asserted that if the court did not extend the time for her to appeal, she would be sent back to Indonesia, in which case she would die. 

21.  We are of the view that the intended appeal against the Judge’s refusal to extend the time for appeal has no prospect of success.  Importantly, the applicant has given no viable reason to support her intended appeal in that she has not identified any errors in the Judge’s decision or reasons.  We have also examined the Board’s decision.  We agree with the Judge’s holding that the applicant’s intended judicial review application had no prospect of success.  The Judge was right in refusing to extend time and dismiss the application.

22.  In the circumstances, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 16 February 2021.