BARIYAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 455/2022, [2023] HKCA 489

On appeal from [2021] HKCFI 1865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 455 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2918 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 28 June 2021, Deputy High Court Judge To refused the applicant’s application for extension of time for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 30 September 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3.  On 1 November 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge. In light of the decision of Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 28 June 2021.

4.  The applicant is a national of Indonesia. She is 47 years old. She first entered Hong Kong in 2002 to be employed as a foreign domestic helper. She last arrived in Hong Kong on 24 May 2011 and was permitted to remain as a foreign domestic helper until 25 April 2012. Her employment contract was prematurely terminated on 11 September 2011. She was allowed to remain in Hong Kong as visitor until 17 March 2012. The applicant did not return to Indonesia and subsequently raised her non-refoulement claim on the basis that her ex-husband (he divorced her in 2007) threatened to kill her as informed by her elder brother. It was a money dispute problem arising from the ex-husband selling a house the proceeds of which she wanted to share but he refused and then threatened her. On 28 July 2012, she gave birth to a son in Hong Kong[3].

5.  By a Notice of Decision dated 20 July 2015, the Director rejected both the claims of the applicant and her son on torture risk[4], BOR 3 risk[5] and persecution risk[6].

6.  By a Notice of Further Decision dated 1 November 2016, the Director found that the claims of the applicant and her son did not engage BOR 2 risk[7] as it was not established that there would a real risk upon their return to Indonesia.

7.  The applicant brought an appeal on her own behalf and for her son against the Director’s decisions and attended the hearing before the Board on 8 December 2016. In essence, the Board did not accept the veracity of the applicant’s claim. It found numerous inconsistencies in her evidence, such as the contradictory statement to the Board that her ex-husband never contacted her from 2007 to 2016, and in her statement to the Immigration Department she deposed that her ex-husband called and threatened her on 6 June 2013. The applicant also returned to Indonesia for 12 days in July 2009, which undermined the allegation of fear she would be in danger if she was returned to Indonesia. The Board found the ex-husband had not threatened the applicant. She also admitted at the hearing that she would be safe if she gives up her claim to the proceeds of sale of the house. In any event, the Board found there was satisfactory state protection and internal relocation was not unreasonable for the applicant and her son (whose claim was considered separately). In light of its findings, the Board rejected the claims of the applicant and her son on 20 April 2017.

The judge’s decisions

8.  On 19 December 2018, one year and five months after the decision of the Board, the applicant applied for leave to apply for judicial review out of time. No grounds of appeal were provided in her Form 86 and her affirmation in support. She simply annexed the hearing bundle before the Board and its decision to her supporting affirmation. She did not mention in the papers filed that the application was also made on behalf of her son.

9.  The applicant failed to attend the hearing scheduled before the judge on 21 April 2020. Having read the papers, the judge considered it appropriate to determine the application on paper.

10.  Noting that no explanation was given by the applicant for her inordinate delay, the judge was of the view that it would be better to focus on the merits of the application rather than to enquire into the reasons for the delay.

11.  The judge correctly held that the decisions of the Directors were superseded by the Board’s decision and are no longer susceptible to judicial review. He went on to rigorously examined the Board’s decision and found no fault. The Board had correctly set out the burden and standard of proof and the legal principles relating to the applicable grounds under the unified screening mechanism, and had observed a very high standard of fairness. He held that the findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational. There was no realistic prospect of success in the applicant’s proposed judicial review. The judge therefore dismissed the application for leave to apply for judicial review by his decision of 28 June 2021.

12.  More than a year after the judge’s decision, the applicant issued a summons on 13 July 2022 for extension of time to appeal against the decision. Despite the opportunity given to her to explain this substantial delay, there was no response from the applicant. The judge drew the inference she did not receive the decision because she had moved without updating the court her new address and has to bear the consequence of her neglect. As there was no valid explanation for the substantial delay and no prospect of success of the intended appeal, on 30 September 2022 the judge refused to grant extension of time to appeal against the decision of 28 June 2021.

Grounds of appeal

13.  In the present summons and her supporting affirmation, the applicant stated that she failed to appeal because she did not get the letter from the High Court on time and the judge refused to grant her extension of time to appeal. No other grounds of appeal were mentioned. As for the applicant’s written submissions, she repeated her claims regarding the danger she would face in Indonesia but without providing any particulars in support.

Analysis and disposition

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 28 June 2021. The applicant took out a summons for extension of time to appeal at the court below on 13 July 2022. The applicant was late for over one year. This is very substantial and there was no or no valid explanation for this substantial delay.

16.  As rightly held by the judge, the applicant has the duty to give the court an address to which correspondence or notice can come to her attention in a timely manner, and the consequence of any delay or failure occasioned by the ineffectiveness of providing an improper address of service would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). The applicant has to bear the consequence for failing to update the court with her new address after she has moved.

17.  As the applicant’s delay is inexcusable, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

18.  In assessing the merits of the intended appeal, the court 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.

19.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.  The applicant has not provided any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant her extension of time to seek leave for judicial review. Her written submissions are simply bare assertions without any evidence in support.

21.  We are of the view there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 28 June 2021 and dismiss the summons filed on 1 November 2022.