RE NURHAYATI

HCAL 1924/2018

[2020] HKCFI 3124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1924 of 2018

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DECISION

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Background

1.  On 31 July 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review (“the Judge’s order”) against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 10 September 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 7 April 2017 rejecting the applicant’s non-refoulement claim.

2.  The Judge refused to grant leave to the applicant to apply for judicial review for reasons stated in [14-17] of his decision (Form CALL-1).  Significantly the Judge found that the applicant’s intended application for judicial review had no reasonable prospect of success.

3.  By a summons filed on 23 September 2020, the applicant applied for extension of time to appeal against the Judge’s order.  The applicant had 14 days from that order to apply to appeal to the Court of Appeal.  She did not do so.  She now requires leave to extend time to appeal against that order out of time. The 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of High Court ended on 14 August 2020.  She was therefore late by about 5 weeks with her intended appeal.

4.  In her summons and supporting affirmation of 23 September 2020, the applicant explained her application was late because she did not receive any letter from the High Court.  She also stated that she does not agree with the Judge as he “failed to show any cause of refusal”.

5.  At the hearing on 25 November 2020, she explained she only learnt about the Judge’s order when someone claiming to be a staff of the High Court called her, telling her about the order and asking her whether she would like to stay in Hong Kong longer.  As for the grounds of appeal, she reiterated that she does not agree with the Judge who failed to show cause of refusal.

Discussion

6.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

7.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

8.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

9.  The applicant explained that she had not received the decision. She learned about the decision when a court staff called her.  The explanation is implausible and unacceptable.  It is not the practice of the court to call a non-refoulement claimant informing him/ her of the court’s decision and asking whether he/ she would like to stay longer in Hong Kong.

10.  The length of delay in the present application was not insignificant.  I do not accept the applicant’s explanation for the delay.  The delay is not excusable.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.  In any event, I find that she has no prospect of success at all.

11.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk 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.  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.

12.  In the present case, the basis of the applicant’s claim is that she gave birth to his son in Hong Kong out of wedlock.  Her family in Indonesia would not accept her boyfriend who is not a Muslim (a Hong Kong permanent resident) and her son (also a Hong Kong permanent resident).  The Board found that she would not be harmed by her family or the villagers and there was no real chance that she would be subjected to any of the risks as she claimed.  Moreover, state protection and internal relocation are available to her.  These are findings within the province of the Board.

13.  The Judge properly reviewed the decision of the Board with rigorous examination and anxious scrutiny.  The Judge demonstrated in his consideration that he had applied the relevant legal principles correctly and considered all the relevant issues reasonably and properly.

14.  The applicant has not identified any valid grounds of appeal or errors in the Judge’s decision.  None could be ascertained from the papers or at the hearing.  The bare assertion that the Judge failed to show any cause of refusal without particulars and evidence in support cannot be a valid ground of appeal.  The Judge gave reasons for his decision.

15.  Having considered the materials before me, I am of the view that the findings by the Board and the Judge’s observations are justified.  I share the Judge’s view that the applicant’s application for judicial review had no reasonable prospect of success and that leave to apply for judicial review should be refused.

Conclusion

16.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time, and the summons dated 23 September 2020 taken out by the applicant is dismissed.