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CAMP 533/2021
[2022] HKCA 693
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 533 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO 1531 OF 2018)
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| BETWEEN |
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MIRNA LESTARI |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
____________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Written Submissions: |
16 December 2021 |
| Date of Judgment: |
12 May 2022 |
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J U D G M E N T
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Hon Chow JA (giving the judgment of the Court):
1. On 24 November 2021, the Applicant took out a summons with a supporting affirmation seeking an extension of time to appeal the decision of Deputy High Court Judge C P Pang (“the Judge”) dated 23 December 2020 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 30 July 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 4 August 2015 and 11 September 2017.
2. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
Background
3. The Applicant is a national of Indonesia. She previously worked as a foreign domestic helper in Hong Kong in 2008 and 2009. She last entered Hong Kong as a visitor on 21 May 2009, and was permitted to remain until 16 September 2009, but overstayed illegally. On 25 November 2010, she was arrested by the police for overstaying and referred to the Immigration Department for investigation. On 6 April 2015, she lodged a non-refoulement claim. The Applicant claimed that if she was refouled back to Indonesia, she would be harmed or killed by the creditor of her grandmother. Details of the Applicant’s claim have been summarised by the Judge at §3 of the CALL-1 Form ([2020] HKCFI 3078).
4. By a Notice of Decision dated 4 August 2015, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 3 risk[2], and persecution risk[3]. By a Notice of Further Decision dated 11 September 2017, the Director rejected the Applicant’s claim based on BOR 2 risk[4].
5. The Applicant appealed the Director’s decisions to the Board. On 30 July 2018, the Board dismissed the Applicant’s appeal, and confirmed both the Director’s decision and further decision (“the Board’s Decision”).
6. The Board considered the Applicant’s story woefully vague and insufficient to discharge her burden of proof of her non-refoulement claim (see Board’s Decision at §5.1). The Board found in any event that state protection was available and internal relocation was a viable option for the Applicant (see Board’s Decision at §32-33). The Board concluded that her claim for non-refoulement protection failed on all applicable grounds.
The judge’s decision
7. On 2 August 2018, the Applicant filed her Form 86 seeking leave to apply for judicial review of the Board’s Decision.
8. On 23 December 2020, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§16-21 of Form CALL-1, the Judge stated as follows:
“16. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.
17. The applicant stated no grounds of the judicial review in Form 86. She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.
18. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.
19. The applicant’s conduct in Hong Kong by her delay in lodging the claim for protection was inconsistent with someone in genuine fear for her life and safety. It could be taken as damaging the applicant’s credibility of her claim. Her claim of fear is implausible.
20. Further, even if one gives her account the most favourable interpretation, the alleged threat demonstrates no real risk of harm. There was no valid reason why the creditor of her grandmother would target her and still wish to pursue her after so many years.
21. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.”
9. On 11 November 2021, Deputy High Court Judge P Li dismissed the Applicant’s summons taken out on 3 February 2021 for extension of time to appeal.
This Application
10. By a summons taken out on 24 November 2021, the Applicant applied to this Court for an extension of time to appeal the decision of the Judge of 23 December 2020. In her supporting affirmation filed on the same date, the Applicant stated that her appeal was late because she received the Judge’s decision late.
11. In her 2-page written submissions dated 16 December 2021, the Applicant stated that she came to Hong Kong for the safety of her life, and repeated her fears if refouled back to Indonesia.
Discussion
12. In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
13. The prospect of success of an intended appeal is important. The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
14. The court’s 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.
15. A delay of nearly a month is substantial. The Applicant’s previous explanation given to Deputy High Court Judge P Li that her delay was due to her financial problems was rightly rejected by the learned judge. As for the explanation now offered in her supporting affirmation dated 24 November 2021, namely, that her delay was caused by the late receipt of the Judge’ decision, this is a general and bare assertion, and carries no weight.
16. In any event, the Applicant has failed to identify any specific error in the Judge’s decision, or raised any viable ground of appeal against the decision. The mere repetition of the factual basis of her non-refoulement claim is not a valid ground of appeal against the decision.
17. There is no reasonable, or real, prospect of success in the Applicant’s intended appeal.
Disposition
18. The application for extension of time to appeal is refused, and the Applicant’s summons of 24 November 2021 is dismissed.
(Thomas Au)
Justice of Appeal |
(Anderson Chow)
Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2]This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3]This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4]This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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