SITI MAESAROH SUKARI v. TORTURE CLAIMS APPEAL BOARD

CAMP 133/2019

[2019] HKCA 986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 133 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 611 OF 2018)

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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 30 April 2019, Deputy High Court Judge Josiah Lam refused to grant an extension of time for the applicant to apply for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim^[1].

2.  On 6 June 2019, Deputy High Court Judge K W Lung refused to grant leave to the applicant to appeal against the said decision as her intended appeal does not have a reasonable prospect of success^[2].

3.  The applicant filed a renewed application with the Court of Appeal for leave to appeal against the judge’s decision on 18 June 2019.

4.  The applicant is a national of Indonesia.  She came to Hong Kong to work as a domestic helper in 2003.  Her last employment contract was terminated prematurely on 23 March 2011.  She overstayed in Hong Kong and raised a torture claim in May 2011.  She claimed that she would be harmed or killed by her husband.  She withdrew the claim in November 2012.  In September 2014, the applicant raised a non-refoulement claim but did not renew her torture claim.

The Director’s decision

5.  By a Notice of Decision dated 27 July 2016 and a Notice of Further Decision dated 21 July 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

The Board’s decision

6.  The applicant appealed against the Director’s decisions.  The Board found that the applicant had not been inflicted with severe suffering and did not accept the applicant faced any real risk that warranted non-refoulement protection.  The appeal was therefore refused on 22 September 2017.

The intended judicial review

7.  The applicant filed a Form 86 on 11 April 2018 to seek leave to apply for judicial review against the decision of the Board.

The judge’s decision

8.  The application was heard before DHCJ Josiah Lam on 10 September 2018.  The applicant explained that her application was late because she did not know she had to make the application within three months.

9.  The judge found that the adjudicator had proper basis for his decision, he made no errors of law and there was no procedural unfairness.  The judge also considered that the applicant failed to show any good reason to justify her delay.  Therefore, the judge refused to grant extension of time for application for leave to apply for judicial review on 30 April 2019. 

The grounds of appeal

10.  The applicant stated in her summons that she is appealing because she was not in the court on the day of judgment and she does not want to go back to her country now^[6].

11.  In her written submissions, she reiterated that her husband tried to kill her and her life is in danger and at risk if she goes back to Indonesia.

Analysis and disposition

12.  In Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419^[7], the Court of Appeal held that for an application for leave to judicial review made outside the three-month limit, an applicant must obtain an extension of time under Order 53, rule 4(1) of the Rules of the High Court before the application for leave can be entertained. 

13.  The decision on extension of time should be regarded as interlocutory in nature, hence section 14AA of the High Court Ordinance (Cap 4) is applicable and leave to appeal is required^[8].

14.  Under section 14AA(4) of the High Court Ordinance, Cap 4, leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.

15.  Reasonable prospect involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”^[9].

16.  A decision on extension of time, involving a multi-faceted assessment, is an exercise of discretion.  The Court of Appeal will not disturb such assessment unless an applicant can pinpoint an error of law or principle, reliance on irrelevant consideration or failure to have regard to relevant consideration on the part of the first instance judge, or show that the decision is clearly wrong^[10].

17.  As rightly found by Deputy High Court Judge Josiah Lam at paragraph 39 of the decision, the applicant failed to provide any good reason for her delay.

18.  In respect of the merits of the applicant’s case, as the Court of Appeal has repeatedly emphasized, determination of merits of the case is primarily within the province of the Board.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board^[11].

19.  The applicant fails to show that there is any error or unfairness in the Board’s decision.  She also fails to point out any error in the judge’s decision in refusing to grant extension of time for her application for leave to apply for judicial review.

20.  We dismiss the summons filed on 18 June 2019 as the applicant has failed to show that she has any prospect of success in the intended appeal. 

21.  As this application is totally unmeritorious, we make an order pursuant to O 59, r 2A(8) of the Rules of High Court that no party may request for an oral hearing to reconsider it.