RE CICIK WAHYU

CAMP 49/2022

[2022] HKCA 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 49 OF 2022

(ON APPEAL FROM HCAL NO. 1598 OF 2019)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I.  Renewed application for extension of time to appeal

1.  On 12 June 2019, the applicant issued her application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decisions of the Torture Claims Appeal Board (‘the Board’) dated 21 March 2017 and 6 June 2019 dismissing her appeal against the decisions of the Director of Immigration (‘the Director’) dated 27 October 2015 and 18 August 2018 rejecting her non‑refoulement claim.

2.  In his decision of 19 April 2021, Deputy High Court Judge P Li refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time for over two months, the applicant took out an application on 21 July 2021 before the Judge requesting an extension of time to appeal.  The Judge on 11 January 2022 rejected the applicant’s application.  

4.  Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 14 February 2022 (being about one month late), the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

6.  The applicant is a national of Indonesia.  She entered Hong Kong as a domestic helper on 31 July 2013.  Upon termination of her contract on 11 March 2015, she overstayed and was subsequently arrested on 18 May 2015.  She lodged her non-refoulement claim shortly thereafter on the basis that she would be killed or harmed by her violent husband and loan shark in Indonesia. 

7.  The details of the applicant’s claim have been summarized by the Judge at [2] and [3] of the CALL‑1 Form.

III.  The Director’s Decision

8.  The Director decided against the applicant’s non‑refoulement claim on 27 October 2015.  The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

9.  The Director decided against the applicant’s right to life claim on 18 August 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Hong Kong Bill of Rights  (‘BOR 2’).

IV.   The Board’s Decision

10.  The applicant appealed against the Director’s Decision out of time by over five months.  The Board refused the late appeal by the applicant as she did not respond to the Board’s request for additional information and no justification was provided for delay.  Therefore, her appeal was rejected on 21 March 2017.

11.  As for the appeal against the Director’s Further Decision, the applicant was late again for about one month. The Board considered the merits of the appeal and found the applicant’s claim that she was mistreated by her husband and his creditors was personal in nature. The Board also found there was reasonable protection from the state and internal relocation was possible.  Her claim that the creditors would look for her in another part of Indonesia was ‘far‑fetched and fanciful’.  Therefore, her appeal was rejected on 6 June 2019.

V.   Decisions of the Judge

12.  In his decision dated 19 April 2021, the Judge accepted the Board’s view of 6 June 2019, namely that the applicant’s claim was personal in nature.  The Judge held that, although the Board’s decision of 21 March 2017 was irregular in that the merits of the applicant’s appeal was not considered, had the Board done so, it would inevitably arrive at the same conclusion that there was no merit in the intended appeal.  The Judge did not find the leave application for judicial review to be reasonably argued and there was no realistic prospect of success.

13.  In his decision dated 11 January 2022, the Judge held that the applicant was unable to set out any valid ground to challenge the Board’s Decision.  He also held that upon careful consideration of the Board’s decision, there was no merit in the intended judicial review.   

VI.   Legal principles

14.  In considering whether to extend time for appeal, the Court will have regard to :

1)  length of the delay;

2)  reasons for the delay;

3)  prospect of the intended appeal; and

4)  prejudice to the putative respondent if extension of time was granted.

VII.   Analysis

1)   Length of delay and reasons for the delay

15.  There was substantial delay by the applicant when she lodged her application below for extension of time to appeal.  This delay occurred again when the applicant failed to comply with the time requirement for her present renewed application.  We will, however, focus on the merits of the intended appeal.

2)   Prospect of the intended appeal

16.  In the applicant’s summons, she simply stated that she did not receive the decision form the Court below on time.  As for her written submissions, the applicant repeated that her life would be in danger if she was returned to Indonesia.

17.  In our judgment, the applicant does not have any prospect of success in her intended appeal.  The Judge had considered all the relevant matters including the merits of her case when he refused to grant extension of time for leave for judicial review and dismissed his application.

18.  Since the applicant has not identified any error of law or procedural unfairness in the Judge’s Decision of 19 April 2021, the intended appeal cannot have any prospect of success.

VIII.  Disposition

19.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 14 February 2022.