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CAMP 588/2021
[2022] HKCA 692
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 588 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 1706 OF 2018)
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| BETWEEN |
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NURIMAH |
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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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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| Before: |
Hon Au and Chow JJA in Court |
| Date of Written Submissions: |
6 January 2022 |
| Date of Judgment: |
12 May 2022 |
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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. On 23 December 2021, the Applicant took out a summons with a supporting affirmation seeking an extension of time to appeal the decision of Deputy High Court Judge Woodcock (“the Judge”) dated 20 December 2019 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 9 February 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 6 July 2016 and 13 July 2017.
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, Cap 4A.
Background
3. The Applicant is a national of Indonesia. She previously worked as a foreign domestic helper in Hong Kong from 1997 to 2002 and from 28 April 2006. Her employment contract was terminated on 13 October 2009, and she overstayed illegally in Hong Kong as from 28 October 2009. On 23 October 2010, she was arrested by the police for overstaying. On 10 November 2010, the Applicant lodged a non-refoulement claim. The Applicant claimed that if she was refouled back to Indonesia, she would be harmed by her husband. Details of the Applicant’s claim and background have been summarised by the Judge at §§1-11 of the CALL-1 Form ([2019] HKCFI 2630).
4. Having previously rejected the Applicant’s claim based on the risk of torture[1], by a Notice of Decision dated 6 July 2016, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: BOR 3 risk[2] and persecution risk[3]. By a Notice of Further Decision dated 13 July 2017, the Director rejected the Applicant’s claim based on BOR 2 risk[4].
5. On 9 February 2018, the Board dismissed the Applicant’s appeal, and confirmed both the Director’s decision and further decision (“the Board’s Decision”). The Board accepted that the Applicant’s husband in Indonesia had made threats to her, but there was no substantial risk of harm from his verbal utterances. The Board found in any event that state protection was available, and Country of Origin information showed that Indonesia had a police and judicial system under which perpetrators of domestic violence might be arrested and prosecuted. The Board concluded that the level of real risk of harm to the Applicant upon refoulement was non-existent, and the Applicant’s claim for non-refoulement protection failed on all applicable grounds.
the judge’s decision
6. On 21 August 2018, the Applicant filed her Form 86 seeking leave to apply for judicial review of (inter alia) the Board’s Decision.
7. On 20 December 2019, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§5-7 and 12-13 of Form CALL-1, the Judge stated as follows:
“5. This notice of application was filed late; it was not within three months of the date of the adjudicator’s decision (Order 53 rule 4). It was six and half months late. Her notice of application does not set out any reasons for the delay as it should. In fact, it does not acknowledge the application is late. It does not seek an extension of time to file this application as it should. Her affirmation in support of her application makes no mention of the delay nor gives any reason for the delay. In fact, she only states that the decision of the Board is fair and unreasonable. I assume she means unfair and unreasonable.
6. I have considered the legal principles for granting an extension of time for judicial review, the following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raised any questions of general public importance.
7. I find the delay is not insignificant, there is no explanation for the delay and there is no good reason for extending time. In fact, there are no proper or substantive grounds put forward to support this application. The application, even on review of the papers, does not raise any questions of general public importance. Delay alone is enough to dispose of this application.
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12. The applicant seeks to judicial review both the Director and the adjudicator of the TCAB. In my view, this is not appropriate here. Despite the delay, I will consider her grounds of his application against the decision of the TCAB adjudicator only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. There is no room for a judicial review of the Director’s decision; there is no special reason or exceptional reason here.
13. The applicant has not set out any grounds in his affirmation. I did consider with rigorous examination and anxious scrutiny the papers of this application. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. The same in fact applies to the decision of the Director. My decision would equally apply to the applicant’s daughter if her name had been added to this application.”
8. On 2 August 2021, Deputy High Court Judge K W Lung dismissed the Applicant’s summons taken out on 12 May 2020 for extension of time to appeal.
This Application
9. By a summons taken out on 23 December 2021, the Applicant applied to this Court for an extension of time to appeal the decision of the Judge of 20 December 2019. In her supporting affirmation filed on the same date, the Applicant stated that her appeal was late because she received the decision very late from the post office.
10. In her 3-page written submissions dated 6 January 2022, the Applicant repeated that her previous husband still wanted to kill her.
Discussion
11. In deciding whether to extend time to appeal, the 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.
12. The prospect of success of an intended appeal is important. The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
13. 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.
14. A delay of over four months is substantial. The explanation offered in the Applicant’s supporting affirmation dated 24 November 2021, namely, that her delay was caused by the late receipt of the Judge’ decision, is a general and bare assertion, and contradictory to her previous explanation for the delay. As mentioned by Deputy High Court Judge K W Lung, the Applicant’s explanation for her delay before the learned judge was that “she was unaware of the time limit for appeal” (see [2021] HKCFI 2131 at §5).
15. In any event, the Applicant has failed to identify any specific error in the Judge’s decision, or raised any viable ground of appeal against the decision. The mere repetition of the factual basis of her non-refoulement claim is not a valid ground of appeal against the decision.
16. There is no reasonable, or real, prospect of success in the Applicant’s intended appeal.
Disposition
17. The application for extension of time to appeal is refused, and the Applicant’s summons of 23 December 2021 is dismissed.
(Thomas Au)
Justice of Appeal |
(Anderson Chow)
Justice of Appeal |
The Applicant, acting 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 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.
[4] 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.
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