RE SRI SUYATI

CAMP 24/2022

[2023] HKCA 122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 24 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 95 OF 2021)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 27 April 2021, DHCJ P. Li (“the Judge”) refused to grant an extension of time to the applicant for application for leave to apply for judicial review concerning her non-refoulement claim (“the JR Decision”) and dismissed her leave application. Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 7 June 2021 for an extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 11 January 2022.

3.  On 18 January 2022, the applicant filed her summons in CAMP 24/2022 (“the Summons”) in the Court of Appeal applying to this Court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 18 January 2022, the applicant lodged her written submissions on 4 February 2022.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is an Indonesian national.  She came to Hong Kong as a foreign domestic helper on 28 February 2014.  Her contract was prematurely terminated on 15 July 2014. She did not leave Hong Kong and overstayed since 30 July 2014.  She was arrested by police on 3 August 2015 and on 12 August 2015, she raised a non-refoulement claim alleging that if refouled, she would be harmed or even killed by (i) a loan shark P as she could not repay her ex-husband’s loan and/or (ii) her ex-husband who she had divorced in 2009 but who wanted to remarry her, so that she could settle his debt, which she refused to do.  The factual background of this case was succinctly summarised by the Judge at [5] – [13] of the JR Decision ([2021] HKCFI 1121).

7.  By a Notice of Decision dated 29 January 2016 and a Notice of Further Decision dated 3 May 2018, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  An oral hearing was fixed for 19 July 2018 but the applicant failed to attend.  Despite the Board’s written request, she failed to provide a written explanation for her absence.  The Board determined her appeal/petition on paper without an oral hearing. 

9.  By its decision dated 14 September 2018, the Board dismissed the appeal for the reasons set out at [24] to [45] of its decision and confirmed the Director’s decisions.  The Board rejected the applicant’s evidence for lack of credibility.  First, the applicant did not raise her non-refoulement claim when she came to Hong Kong in February 2014 nor for the following year and a half, until she was arrested in August 2015. Second, there was no documentary proof that the applicant married her ex-husband at the age of 14.  The evidence suggested the marriage would not have brought any benefit to her family. Without any elaboration from the applicant, the Board did not accept that she was married.  Third, the applicant also failed to substantiate her account about her ex-husband’s debt and the Board had grave doubt if the loan ever existed.  There is also no evidence to support her assertions of domestic violence or forced re-marriage due to the debt.  In any event, relevant country of origin information (“COI”) suggests there is reasonable state protection [56] – [64] and internal relocation is a viable option [86] – [91].  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 27 January 2021, the applicant filed a Form No 86 to apply for leave to judicially review the Director’s and Board’s decisions.  Pursuant to Order 53, rule 4(1) of the Rules of the High Court (Cap.4A), an application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when the grounds for application first arose.  By the time she filed the Form 86, she was out of time for over 25 months.

11.  In her supporting affirmation, she did not explain her substantial delay nor advance any ground for relief.

The JR Decision

12.  The applicant did not request an oral hearing and the application was disposed of on paper.  After due consideration of the Board’s decision, the Judge refused to grant an extension of time to apply for leave to apply for judicial review and dismissed the leave application for the reasons set out in [21] - [23] of the JR Decision:

“21. The applicant did not apply for leave within 3 months of the TCAB decision as required under the law. She did not provide any explanation for the delay.  In considering whether there is good reason for the delay, I have considered the length of the delay, the reason for the delay and the merits of the leave application.^[5]

22. The applicant did not explain her absence from the TCAB hearing despite prompt notice. It was correct for the adjudicator to deal with the appeal on paper.

23. I agree with the decision of the TCAB. The basis of the claim is not credible even on paper. There is no merit in the intended judicial review. In my judgment, there is no error of law and procedure.  The decision of the TCAB is reasonable.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 7 June 2021 for an extension of time to appeal.  That was dismissed by the Judge on 11 January 2022.  Hence, the Summons to this court.

Discussion

14.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

15.  As for (1), the applicant was late by almost 1 month between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was substantial.

16.  As for (2), the reasons for the delay, the applicant explained in her affirmation dated 7 June 2021 in support of her application that she did not receive the JR Decision.  The court file showed that the JR Decision was sent to her on 27 April 2021 to her last reported address (which is the same as that provided in her summons dated 7 June 2021) and it was not returned as undelivered post. The applicant’s mere assertion that she had not received the JR Decision is not a good reason for delay.

17.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not advance any ground for her intended appeal nor did she pinpoint any error in the JR Decision. 

18.  In the applicant’s summons and supporting affirmation filed with this Court, she did not advance any grounds for her intended appeal or pinpoint any error of the JR Decision save for repeating the reason why she delayed in filing her appeal against the JR Decision.

19.  In her written submissions lodged with this Court, she quoted passages from ST v Director of Immigration ^[6][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on high standards of fairness.  She complained that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submissions further referred to section 37ZT of the Immigration Ordinance (Cap. 115) which stated that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge. However, she did not explain or elaborate how the legal authorities and provisions would apply and assist her case.

20.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision. 

21.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 18 January 2022.