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CAMP 345/2021
[2021] HKCA 1977
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 345 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO 1835 OF 2018)
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BETWEEN
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TURSINIH |
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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and |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
________________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Written Submissions: |
31 August 2021 |
| Date of Judgment: |
29 December 2021 |
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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. This is an application for an extension of time to appeal against an order made by Deputy High Court Judge K W Lung (“the Judge”) on 13 July 2020 (“the Order”) refusing the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/NON-REFOULEMENT CLAIMS PETITION OFFICE (“the Board”) dated 30 August 2018 (“the Board’s Decision”).
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 (“RHC”), Cap 4A.
BACKGROUND
3. The Applicant is a national of Indonesia. On 20 November 2015, she came to Hong Kong to work as a foreign domestic helper. On 2 March 2016, her employment was terminated and she was required to leave on or before 16 March 2016. On 22 March 2016, she surrendered to the Immigration Department for overstaying. She lodged her non-refoulement claim on 25 April 2016 on the basis of a claimed fear that, if refouled to Indonesia, she would be harmed or even killed by her husband because she could not help him repay his debt. Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form ([2020] HKCFI 1537).
4. By a Notice of Decision dated 12 January 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 Risk[2], BOR 3 risk,[3] and persecution risk[4] (“the Director’s Decision”).
5. The Applicant appealed the Director’s Decision to the Board. On 30 August 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decision.
JUDGE’S DECISION
6. On 4 September 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.
7. On 13 July 2020, the Judge refused to grant leave to the Applicant to apply for judicial review and dismissed her application.
8. The Judge’s reasons for refusing the application were set out at §§13-16 of the CALL-1 Form:
“13. The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.
14. I put the Board’s findings to her and asked her if she had any comments on them. She said that she had no comments.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’
16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”
9. Under Order 53, Rule 3(4) of the RHC, the Applicant may appeal against the Order to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the Applicant within the 14-day period.
10. On 17 August 2020, the Applicant made an application for an extension of time to appeal against the Order. On 3 August 2021, the Judge refused to extend time for the Applicant’s intended appeal and dismissed her application.
THIS APPLICATION
11. On 19 August 2021, the Applicant filed the present summons to challenge the Order. It is treated as a renewed application for extension of time to appeal against the Order (see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).
12. In her supporting affirmation dated 19 August 2021, the Applicant stated that she wanted to “give to the court a more complete picture” about her case and attached a copy of the Judge’s decision and order dated 3 August 2021.
13. In her written submissions dated 31 August 2021, the Applicant raises the following proposed grounds of appeal: (i) the Board failed to make sufficient enquiry before finalizing the decision and rejected the appeal without any reason; (ii) non-refoulement claims should be assessed with legal and interpretation assistance provided by the duty lawyers service; and (iii) the decision did not meet the necessary high standards of fairness and/or was unlawful.
DISCUSSION
14. 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.
15. The prospect of success of the intended appeal is important: the court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
16. 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.
17. The Applicant has failed to identify any error on the part of the Judge in refusing to grant leave to apply for judicial review. There is no merit in the Applicant’s complaint that there was a failure to provide language assistance. A high standard of fairness does not include the provision of interpretation service at any time that a non-refoulement claimant wishes or desires: Karamjit Singh CACV 78/2018, at §21. The Applicant’s allegation that her case was not determined fairly is nothing more than a bare assertion.
18. The Applicant has not shown any errors in the Judge’s decision to refuse to grant leave to apply for judicial review, or any viable grounds of appeal in her summons, supporting affirmation, or written submissions. There is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
19. The application for extension of time to appeal is refused, and the Applicant’s summons of 19 August 2021 is dismissed.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The Applicant, unrepresented, acted 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 being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] 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.
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