RE HIMATUN NAFIAH

CAMP 375/2021

[2021] HKCA 1791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 375 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 465 OF 2021)

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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 Lung (“the Judge”) dated 3 May 2021 refusing to extend the time for her to apply for judicial review and dismissing her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also lodged a written submission 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, 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”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) rejecting her non-refoulement claim.

5.  The applicant is a national of Indonesia aged 29.  She first came to Hong Kong to work as a domestic helper in 2005.  She last arrived in Hong Kong on 16 March 2010 and was permitted to remain to work as a domestic helper.  After her employment contract was prematurely terminated on 17 August 2010 and her extension of stay expired, she overstayed and was arrested by the police on 26 September 2010.  She later raised a torture claim which she withdrew on 21 August 2012.  After she served her sentence for a criminal conviction, she raised a non-refoulement claim on 22 February 2014.  Her claim was based on fear of being harmed or killed by her mother due to her refusal to marry her mother’s creditor and her conversion from Islam to Christianity.  The details of the applicant’s claim were set out in the Director’s decision at [8].  We will not repeat them.     

6.  By his decision dated 11 January 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and the BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board against the Director’s Decision was heard on 28 February 2018.  By its decision dated 24 April 2018, the Board dismissed the appeal.  The Board had grave concerns about the applicant’s evidence, which was vague and lacking in details.  The Board considered that even on the applicant’s case, the threats from her mother took place more than 10 years ago and the applicant has no ongoing contact with her family.  The Board also found internal relocation was viable, which would reduce or negative any risks of harm faced by the applicant.  The Board held that there is no real risk of the applicant suffering ill-treatment of any sort, whether at the hands of her mother or any other person, should she return to Indonesia, and concluded that she is not entitled to non-refoulement protection on any of the applicable grounds.

8.  Order 53 rule 4(1) of the Rules of the High Court provides that 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.  The three months’ period for the applicant to file a Form 86 expired on 24 July 2018.

9.  More than two years later, on 1 April 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. In both the Form 86 and the supporting affirmation, the applicant did not set out any ground for seeking relief.  Nor had she explained the delay.    

10.  The Judge dealt with the application on the papers.  By a Form CALL-1 dated 3 May 2021[5], the Judge refused to extend the time for applying for judicial review of the Board’s decision, and refused the application for leave to apply for judicial review.  The Judge’s principal reason was that the intended judicial review had no reasonable prospect of success, as there was no error of law or procedural unfairness in the Board’s findings and decision.  

11.  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 period for the applicant to appeal the Judge’s order expired on 17 May 2021.

12.  By a summons filed on 2 July 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers and refused the application by a decision handed down on 23 July 2021[6]. 

13.  On 8 September 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal. 

14.  In deciding whether to extend time for appealing against the Judge’s decision refusing her leave to apply for judicial review, the court has to consider: (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. 

15.  The applicant was late by more than one month when she filed the 2 July 2021 summons.  The delay is not insubstantial.  Both before the Judge and in the present application, the applicant explained that she did not receive the Court’s decision and order within in time.  We note from the court record that the Form CALL-1 and the sealed order of 3 May 2021 was sent to the Castle Peak Bay Immigration Centre, which was the address stated in the Form 86.  On 10 May 2021, they were returned to the Court undelivered, as the applicant had left the immigration centre.  We are therefore prepared to accept that the applicant did not receive the Judge’s decision and order timely.  However, the fault lies with the applicant as she had failed to inform the court of her new address after she left the immigration centre. 

16.  As to the merit of the intended appeal, we 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].

17.  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.

18.  In the present application, the applicant has not provided any ground of appeal in her summons or affirmation.  

19.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289.  It submitted that: (1) the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim; (2) the Board failed to scrutinize the Director’s decision and consider the country of origin information, and erred in simply trying to see whether it could find fault with the Director’s decision; and (3) the common law requires minimal standards of procedural fairness in the decision making process.      

20.  In our view, the written submission did not contain arguable grounds of appeal against the Judge’s decision.  Firstly, it was not shown how the legal propositions quoted in the written submission relate to the applicant’s case.  Secondly, the complaints about the Board’s approach has no basis at all.  It is clear from the Board’s decision that it had independently reviewed the applicant’s claim, including her evidence and the country of origin information.    

21.  We have in any event examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  The Judge was correct in finding the intended judicial review has no reasonable prospect of success and refusing to extend the time to apply for judicial review.

22.  As the applicant’s intended appeal against the Judge’s refusal to extend the time for applying for leave to judicial review and the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 8 September 2021. 

[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 of 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 and its 1967 Protocol.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] [2021] HKCFI 1157.

[6] [2021] HKCFI 2059.