RE LUTFIANA

CAMP 315/2022, [2023] HKCA 583

On Appeal From [2021] HKCFI 2051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 315 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2314 OF 2018)

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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 23 October 2018, the applicant issued her application for leave to apply for judicial review by Form 86 against the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (‘the Board’)  dated 19 January 2018.

2.  By a decision dated 16 July 2021 ([2021] HKCFI 2051)  (‘the Decision’), Deputy High Court Judge To: 1) refused to grant the applicant an extension of time to apply for judicial review; and 2) dismissed her application.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court (Cap. 4A)  (‘RHC’), the applicant had 14 days to appeal against the Decision (by 30 July 2021).  However, it was not until 25 April 2022 that the applicant took out a summons seeking extension of time to appeal.  The applicant was out of time for almost nine months.  By a decision dated 30 June 2022 ([2022] HKCFI 1967), the Judge refused the applicant’s application for extension of time to appeal.

4.  Under Order 59, rule 14(3)  of the RHC, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (by 7 July 2022). However, it was only by summons dated 26 August 2022 (‘the Summons’)  that the applicant renewed her application to this Court for extension of time to appeal.

5.  Pursuant to the directions of the Registrar of Civil Appeals dated 26 August 2022, the applicant was to lodge written submissions in support of her renewed application on or before 9 September 2022.  The applicant has lodged her written submissions as directed.

6.  Under Order 59, rule 14A(1)  of the RHC, 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 and the Board’s decision

7.  The applicant is a national of Indonesia.  She lodged a prior non-refoulement claim by written representation on 28 October 2015.  In that prior claim, she asserted that her father would threaten to kill her if she returned to Indonesia as she was pregnant without a husband.  She stated that on 2 August 2009 she entered into a religious marriage ceremony with a Pakistani man which marriage was neither registered in Hong Kong nor recognized by Indonesian law. She gave birth to her first daughter in Indonesia on 5 July 2011.  In early 2015, the applicant became pregnant again and gave birth to her second daughter in Hong Kong on 13 December 2015.

8.  On 28 February 2016, the Immigration Department received a letter from the applicant requesting to cancel her non-refoulement claim because she wanted to go back to Indonesia and it was safe for her to return.  The Director of Immigration (‘the Director’)  informed the applicant by letter dated 29 February 2016 that her non-refoulement claim was treated as withdrawn.  On 3 March 2016, the Director also received a letter from the Duty Lawyer Service (which was then representing the applicant)  that the applicant confirmed her intention to withdraw her non-refoulement claim.

9.  On 31 October 2016, the applicant by letter requested re-opening of her non-refoulement claim, on the basis that her life would be in danger if she returned to Indonesia.

10.  A re-opening of her non-refoulement claim is only possible under section 37ZE of the Immigration Ordinance (Cap. 115)  (‘the Ordinance’)  if either there was a change of circumstances, or that by reason of special circumstances, it would be unjust not to re-open the claim.

11.  Pursuant to that section, on 3 November 2016, the Director requested the applicant to provide information and elaborate on her change of circumstances.  The applicant did not respond.

12.  Having considered the existing and available materials, the Director was of the view that the applicant had failed to provide sufficient evidence to show that there has been a change of circumstances.  By a notice dated 14 February 2017, the Director rejected the applicant’s request to re-open her non-refoulement claim.  The applicant was required to lodge any appeal to the Board against the Director’s decision within 14 days under section 37ZS(1)  of the Ordinance.

13.  The applicant only lodged her notice of appeal to the Board on 8 March 2017.  She was six days late.  Under section 37ZT(1)  of the Ordinance, if the applicant wants to file her appeal to the Board out of time, the applicant must furnish a statement of the reasons for failing to file the notice within that period, accompanied by any documentary evidence to substantiate her assertions.

14.  The Board took into account the excuse proffered by the applicant, namely that she was not feeling well due to her pregnancy.  The Board however found that none of the documents submitted by the applicant indicated that medication was required or suggested that the applicant need adapt her activities to reduce her level of discomfort.  Nor do they indicate that the applicant’s condition was acute or that she required hospitalization.  On this basis, the Board concluded that there was no good ground for the applicant’s late filing of the notice of appeal.

15.  More substantively, the Board also thought that there was no change in circumstances or any special circumstances which justified the applicant to request for a re-opening of her non-refoulement claim.  In particular, the applicant had failed to respond to the Director’s letter dated 3 November 2016 seeking the applicant’s elaboration on her alleged change in circumstances. 

16.  For these collective reasons, by a decision dated 19 January 2018, the Board disallowed the applicant’s late filing of a notice of appeal.

III.  The Judge’s Decision

17.  By the Decision, the Judge agreed with the reasoning of the Board.  In any event, the Judge considered the applicant’s case substantively, namely that what prompted her to withdraw her non-refoulement claim was that she had previously read on the news that her husband can obtain an Indonesian visa on arrival.  However, upon subsequent checking with the Consulate General of Indonesia in Hong Kong, it was found out that her husband must first obtain a visa before flying to Indonesia.  It was said that this constituted a change in circumstances.  The Judge did not find this to constitute any valid change in circumstances.  The applicant’s husband all along was required to obtain a visa before visiting Indonesia.  Whether he could apply for one on landing or must obtain one in Hong Kong is completely irrelevant.

18.  The applicant was also out of time, when the Board’s decision was delivered on 19 January 2018 but it was not until 23 October 2018 that the applicant filed her Form 86.  The Judge found that there was no valid explanation for the applicant to apply for leave for judicial review out of time.

19.  The Judge hence refused to grant an extension of time to the applicant to apply for judicial review and dismissed her application.

20.  By the decision dated 30 June 2022, the Judge noted that by the time the applicant took out her application for an extension of time to appeal on 25 April 2022, 283 days had lapsed since the Judge’s Decision.  The application was almost nine months out of time, which is very substantial when the rules provide for a 14-day period.  Despite directions requiring her to explain the delay, the applicant declined to do so.  Taking into account the applicant’s lack of explanation for the delay, the lack of prospects of her intended appeal, as well as detriment to good administration, the Judge refused to extend time for the applicant to appeal.

IV.  Legal principles

21.  In considering whether to extend time to 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 an extension of time is granted.

22.  See, e.g., Re Chauhan Manish [2023] HKCA 431 [15].

V.  Analysis

1)  Length of delay and reasons for delay

23.  As noted above, the applicant was out of time for about nine months in her attempt to appeal against the Decision.  The delay is substantial.

24.  The applicant did not give any explanation for her delay in either her supporting affirmation dated 26 August 2022, or her written submissions dated 9 September 2022.

25.  We do not accept that there are any justifiable reasons for her delay.  In any event, we will also examine the merits of the applicant’s intended appeal.

2)  Prospect of the intended appeal

26.  The applicant’s written submissions refer to the high standards of fairness required in the disposition of her torture claim, as well as the requirement of procedural fairness in the decision-making process.  We are not satisfied that the applicant’s rights in those regards had been infringed.  At issue is whether there was any change in circumstances which justified the re-opening of the applicant’s non-refoulement claim, notwithstanding her previous voluntary withdrawal of the same.  The applicant failed to put forward any valid change in circumstances.  The applicant’s explanation relating to her misunderstanding of the visa requirements of her husband to visit Indonesia has no bearing on this issue at all.  The reasoning of the Judge cannot be faulted.

27.  In other words, none of the materials put forward by the Applicant disclose any valid ground of appeal.  The Judge has considered all the relevant matters, including the merits of the applicant’s case when he refused leave to apply for judicial review and dismissed her application.  We detect no error in the Judge’s analysis.

28.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any reasonable prospect of success.

VI.  Disposition

29.  The intended appeal is unarguable.  It would be futile to grant an extension of time to appeal in those circumstances.  Accordingly, we dismiss the Summons.