WIWIN-SETYOWATI-SAMIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 79/2020

[2021] HKCA 98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 79 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1070 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 4 December 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for extension of time to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim[1].

2.  The applicant filed a summons on 16 December 2019 with the court below seeking leave to appeal against that decision.  A hearing of the application was conducted on 5 June 2020.  On 24 June 2020, the judge handed down his decision refusing to grant leave to the applicant as the applicant was unable to show that she has any prospect of success in her intended appeal[2].

3.  On 3 July 2020, the applicant took out a renewed application in the Court of Appeal for leave to appeal against the judge's decision of 4 December 2019.  In light of the decision of the Court of Final Appeal in AH v Director of Immigration [2020] HKCFA 22 which held that an applicant did not need leave to appeal in respect of a refusal of extension of time to apply for leave to seek judicial review, the Registrar of Civil Appeals directed on 29 July 2020 that the present application be treated as an application to seek an extension of time to appeal against the judge's decision of 4 December 2019.

4.  The applicant is a national of Indonesia.  She is 41 years old.  She last arrived in Hong Kong on 20 August 2011 with permission to work as a foreign domestic helper.  Her employment contract was prematurely terminated on 29 February 2012.  She overstayed and surrendered to the Immigration Department on 30 July 2015.  She raised a non-refoulement claim on 11 July 2016. Her claim was made on the basis that she would be harmed or killed by her former boyfriend in Indonesia for having a relationship with another man in Hong Kong.

The Director’s decision

5.  By a Notice of Decision dated 21 November 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 2 risk[3], BOR 3 risk[4], torture risk[5] and persecution risk[6].

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board.  She attended the hearing of the appeal before the Board on 24 April 2017.

7.  The Board found the applicant's claim was not credible because there was no evidence to suggest that her former boyfriend had done anything to carry out his threats as alleged and many of her assertions were not supported by evidence.  The Board considered that the applicant is not a reliable witness.  Thus, the Board rejected the entirety of her claim and dismissed her appeal on 23 May 2017.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 11 June 2018 to seek leave to apply for judicial review out of time against the decision of the Board.  She put forward the following grounds for judicial review:

(1)  there was procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with her appeal;

(3)  there was procedural unfairness in that the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense, or was 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 was given to her only six days before her appeal hearing before the Board with the majority of the documents in English, thereby given her insufficient time to prepare for the hearing due to her limited skill in English and being unrepresented and not able to find any reasonably cheap interpreter for her appeal; and

(6)  the Board significantly relied on source of news not officially recognized or was simply hearsay or outdated which resulted in it making groundless speculations that it would be safe for her to return to her country of origin.  

The judge’s decision on 4 December 2019

9.  A hearing was conducted before DHCJ Bruno Chan on 10 July 2019.  The applicant explained that her application was late as she did not know what to do. 

10.  The judge considered that the applicant did not have good reason to justify the substantial delay of more than nine months.

11.  The judge found there is nothing amiss arising from the hearing bundle as the applicant did not provide any proof of the late receipt of the bundle and the applicant should be familiar with most of the documents which had already been made available to her when she still had legal representation earlier.  The judge also pointed out that she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal.  Furthermore, the judge considered the rest of the applicant's grounds unmeritorious as they were broad and vague assertions without particulars or elaboration.

12.  As the judge was not satisfied that there is any prospect of success in the intended judicial review, he refused to grant extension of time and dismissed the leave application on 4 December 2019.

Grounds of intended appeal

13.  The applicant stated her intended grounds of appeal in her supporting affirmation and they may be summarized as follows:

(1)  she has been deprived of the opportunity to understand the judgments and to make proper grounds of appeal; and

(2)  the judge has made a biased and erroneous judgment.

14.  The Registrar of Civil Appeals made an order on 29 September 2020 requiring the applicant to lodge written submissions by 4 pm on 24 October 2020.  The applicant did not lodge any written submissions as directed.  Pursuant to the Registrar’s order, she is debarred from lodging any written submissions and is deemed to be relying only on the representations made in the summons and the affirmation filed in support of her application for extension of time to appeal.

Analysis and disposition

15.  Although the applicant does not need to seek leave to appeal against the judge’s decision refusing to extend time to apply for leave to seek judicial review, she still has to bring her appeal within 14 days after the refusal of leave by the judge, as prescribed under Order 53 rule 3(4) of the Rules of the High Court.  Therefore, by the time the applicant’s summons was filed on 3 July 2020, she was well out of time to appeal against the judge’s decision of 4 December 2019.

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 judge’s order refusing an extension of time was made on 4 December 2019.  As mentioned earlier, the applicant had filed a summons in the court below for leave to appeal on 16 December 2019, not knowing that leave to appeal was not required. That summons was dismissed by the judge on 24 June 2020 and she filed the present summons with the Court of Appeal on 3 July 2020.  It was on 19 June 2020 that the Court of Final Appeal clarified the law in AH v Director of Immigration (the reasons for judgment were handed down on 14 July 2020), holding that leave is not required to appeal against a decision by a judge of the Court of First Instance to refuse an extension of time to apply for leave to bring judicial review. Under these circumstances, we think there is justifiable reason for the delay in issuing the summons on 3 July 2020.

18.  The crucial consideration here is whether there are merits in the intended appeal. In assessing the merits 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, 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.  The applicant stated in her affirmation that she only got to understand the judgment on the day of the hearing.  However, when she took out her present application in the Court of Appeal, she still failed to identify any error in the decision of the judge in refusing to grant her extension of time. Therefore, ground (1) of her intended grounds is bound to fail.

21.  As for her intended ground (2) pertaining to the biased or erroneous judgment of the judge, this is wholly without basis as she failed to give any particulars, elaboration or evidence in support of such allegation. 

22.  For the above reasons, the applicant does not have any prospect of success in the intended appeal. It is not appropriate to grant an extension of time for her to appeal against the judge’s decision of 4 December 2019. We therefore dismiss the summons filed on 3 July 2020.