RE SUKIYAH

CAMP 170/2021

[2021] HKCA 1389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 170 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NOS.

2546 OF 2018 and 3356 OF 2019 (CONSOLIDATED))

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 11 August 2020 refusing her two applications for leave to apply for judicial review.      

2.  The applicant has filed an affirmation in support of her application.  Despite directions given by the Registrar of Civil Appeals, she has not lodged any written submission.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against (i) the decision of the Torture Claims Appeal Board (“the Board”) dated 1 November 2016 refusing to extend the time for her to appeal the decision of the Director of Immigration (“the Director”) dated 2 September 2016; and (ii) the decision of the Board dated 6 September 2019 dismissing her appeal against the Director’s further decision dated 9 January 2017.

5.  The applicant is a national of Indonesia aged 34.  She last arrived in Hong Kong on 11 July 2012 and was permitted to remain to work as a domestic helper.  After her employment contract was prematurely terminated on 20 October 2012, she overstayed and was arrested by the police on 1 April 2013.  She raised a non-refoulement claim on 7 March 2014 based on fear of being harmed or killed by her husband and his creditor. The details of the applicant’s claim were set out in the Director’s decision at [6] and the Board’s decision at [14] to [24].  We will not repeat them.     

6.  By his decision dated 2 September 2016 (“the Director’s 1^st Decision”), the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds. 

7.  The applicant filed, out of time, a notice of appeal dated 23 September 2016 to appeal the Director’s 1^st Decision.  By a decision dated 1 November 2016 (“the Board’s 1^st Decision”), the Board refused to accept the late filing of the notice of appeal.  The Board considered there was no satisfactory explanation for the delay and there were no special circumstances making it unjust not to allow the late filing of the notice of appeal.   

8.  By a further decision dated 9 January 2017 (“the Director’s Further Decision”), the Director assessed the applicant’s claim on the BOR 2 risk[4] ground and decided against it.

9.  The applicant’s appeal to the Board against the Director’s Further Decision was heard on 9 August 2019.  By its decision dated 6 September 2019 (“the Board’s 2^nd Decision”), the Board dismissed the appeal.  The Board accepted the applicant was regularly subjected to physical abuse by her husband, but she did not sustain serious injuries from the beating, and the last of these abuses was in 2011 before she came to Hong Kong to work.  Other than this, the Board found the applicant’s evidence inherently inconsistent and implausible, and did not accept the incidents she relied on had occurred.  The Board held that there is no real risk of the applicant suffering ill-treatment of any sort, whether at the hands of her husband or any other person, should she return to Indonesia, and concluded that she is not entitled to non-refoulement protection on the BOR 2 risk ground.

10.  On 13 November 2018, the applicant filed a Form 86 together with an affirmation in HCAL 2546 of 2018 to apply for leave to judicially review the Board’s 1^st Decision.  Later on 11 November 2019, the applicant filed another Form 86 and affirmation in HCAL 3356 of 2019 to judicially review the Board’s 2^nd Decision.  In both applications, the applicant did not set out any ground for seeking relief.

11.  The Judge heard the two applications at an oral hearing held on 7 July 2020 at which the applicant was absent.  By a Form CALL-1 dated 11 August 2020[5], the Judge ordered that (i) the two applications be consolidated; (ii) leave to extend the time for applying for judicial review of the Board’s 1^st Decision in HCAL 2546 of 2018 be refused; and (iii) leave to apply for judicial review of the Board’s 2^nd Decision in HCAL 3356 of 2019 be refused.  The Judge explained his dismissal of the two applications at [20] to [23] of the Form CALL-1 as follows:

“20. As to the Board’s 2016 Decision, the Board had considered her explanation for her delay and refused to accept it. There is nothing amiss for the Board to make this decision. The Board had gone further to consider the facts of her case by making reference to the Director’s Decision. It found that there was nothing which appeared unjust if time was not extended for her to file her appeal. This approach is in compliance with the requirements set down in the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 §§17-20.

21. As to Board’s 2019 Decision, 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.”

22. The Court does not find any error of law or procedural unfairness in the Board’s Decisions. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

23. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review against the Board’s 2019 Decision.”    

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 14 September 2020[6].

13.  By a summons filed on 20 January 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers and refused the application by a decision handed down on 13 April 2021[7]. 

14.  On 18 May 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal. 

15.  In deciding whether to extend time for appealing against the Judge’s decision refusing her leave to apply for judicial review, the court has to consider: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

16.  The applicant was late by over four months, which is substantial.  Both before the Judge and in the present application, the applicant gave no explanation for the delay. 

17.  As to the merit of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

18.  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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19.  In the present application, the applicant has not provided any ground of appeal.  She merely stated in the summons that if she could not appeal she would have to return to her country. 

20.  In the two applications below, the applicant has also not provided any ground for seeking relief, let alone showing any legal errors, irrationality or procedural irregularities in the Board’s findings and decision.  There is thus no proper basis to allow the applicant to judicially review the Board’s 1^st Decision when she was two years out of time.  As to the Board’s 2^nd Decision, given that the Board had rejected the factual basis of her claim, the applicant’s intended judicial review has no prospect of success.  The Judge is accordingly correct in refusing to extend the time to judicially review the Board’s 1^st Decision and in refusing leave to apply for judicial review of the Board’s 2^nd Decision.

21.  As the applicant’s intended appeal against the Judge’s dismissal of the two applications for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 18 May 2021. 

[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 of 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 and its 1967 Protocol.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] [2020] HKCFI 1907.

[6] By reason of section 31(1) High Court Ordinance, Cap. 4, the month of August which is the summer vacation (see section 29(2) of High Court Ordinance and Order 64 rule 1(1) of the Rules of the High Court) is to be excluded in calculating the 14-day time limit for filing the Notice of Appeal.

[7] [2021] HKCFI 868.