HERNI SETIOWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 114/2024, [2025] HKCA 44

On appeal from [2024] HKCFI 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 114 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1393 OF 2019)

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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 27 June 2024, the applicant filed a renewed application for leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dated 26 February 2024.

Background

2.  The applicant is a national of Indonesia. She lodged a non‑refoulement claim as she feared that she will be harmed or killed by her father if she returns to Indonesia. Her non-refoulement claim was dismissed by the Director of Immigration on 30 August 2018 and her appeal was dismissed by the Torture Claims Appeal Board (“the Board”) on 9 May 2019.

3.  Her application for leave to seek judicial review against the decision of the Board was dismissed by DHCJ K W Lung on 26 February 2024[1]. Her application for leave to appeal out of time was also dismissed by the judge on 14 June 2024[2].

Grounds of intended appeal

4.  The applicant stated her grounds of intended appeal in her written submissions which may be summarised as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  the adjudicator acted in a procedurally unfair manner without properly assessing her credibility.

Analysis

5.  On 22 July 2024, the applicant wrote to the court indicating that she would like to request to close/withdraw her case in HCAL 1393/2019 as soon as possible because it is safe to go back to her country.

6.  As her applications under HCAL 1393/2019 had already been dismissed and her present application is under CAMP 114/2024, the court requested the applicant to clarify whether she wishes her summons in CAMP 114/2024 be dismissed. However, the court has not received any response from the applicant. Therefore, we proceed to deal her application based on the available documents and materials.

7.  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.

8.  The applicant was late by more than 2 weeks when she took out a summons for leave to appeal out of time at the court below. She explained that she did not receive the judgment within the 14-day period for lodging her appeal.

9.  The judge’s decision of 26 February 2024 was sent to the applicant’s address as stated in her Form 86 by post on the date of handing down, which was not returned by the post office. It is noted that the said address is different from the addresses stated in the applicant’s subsequent summonses for extension of time to appeal but she did not file any notice of change of address to inform the court of her new address. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]). Under these circumstances, the applicant’s delay is inexcusable. Therefore, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

10.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  In the present application, the applicant did not identify any mistakes or unfairness in the judge’s decision. Her grounds and submissions against the Board are just bare assertions without particulars or evidence in support. The applicant failed to show that she has any prospect of success in her intended appeal. She also indicated that it is safe for her to return to her home country.

12.  For the above reasons, we dismissed the applicant’s summons filed on 27 June 2024.