RE MASRUROH IMAS ALAM ZAINEB MAHIR

HCAL 337/2018

[2019] HKCFI 1582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 337 OF 2018

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D E C I S I O N

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1.  On 29 March 2019 I refused to extend time for the applicants to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing their non-refoulement claim and subsequent appeal respectively upon finding no good reason to extend time for their not insignificant delay, and that none of the grounds put forward by them as reasonably arguable or with any prospect of success in their intended application.

2.  The applicants now by a summons issued on 12 April 2019 seek leave to appeal against my decision under Order 59, rule 21 and section 14AA of the High Court Ordinance, Cap 4, which provides that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted, and which applies to a refusal to extend time to apply for judicial review as extension of time is an interlocutory procedural matter: see Kwok Cheuk Kin v Leung Chun Ying  CACV 110/2017 and MI & Anor v Permanent Secretary for Security CACV 162/2017 (heard together, [2018] HKCA 419).

3.  In considering whether leave should be granted in respect of this appeal, it is provided in section 14AA(4) that leave to appeal should not be granted unless the Court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard, and as a decision on extension of time involving a multi-faceted assessment is an exercise of discretion, the Court of Appeal will not disturb such assessment unless an applicant can clearly and properly identify an error of law or principle, or reliance on irrelevant consideration or failure to have regard to relevant consideration on the part of the Court of First Instance judge, or that the decision is plainly wrong: see Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577; AmTrust Europe Ltd v Trust Risk Group SpA [2016] 1 All ER (Comm) 325; Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd [2015] 1 HKLRD 414; and Re A [2018] HKCA 272.

4.  In their written submission of the same date the applicants put forward these grounds of appeal summarized as follows:

(1)  that the Director’s decision in rejecting their claim in finding that the threats against them were only verbal was absolutely lame and sweeping and illogical;

(2)  that Indonesia has serious problems with human trafficking and that the government is unable to protect its women and children from such threats and exploitations;

(3)  that the COI relied on by the Board did not reflect truly or accurately such overwhelming problems in Indonesia in assessing that it would be safe for the applicants to return to Indonesia; and

(4)  that the Board failed to properly consider or assess the risk of harm and persecution to children born out of wedlock in a Muslim country which the applicants would face upon their return to Indonesia.

5.  It seems clear to me that these grounds are only against the decisions of the Director or the Board which had all been considered and dealt with in my decision as either unsubstantiated or not reasonably arguable and with no prospect of success in my refusal to extend time for the applicants’ late application for leave to apply for judicial review, while Ground (2) which relates to alleged problems of human trafficking in Indonesia was never raised before by the applicants and appears to me wholly irrelevant to their non-refoulement claim made in the process before the Director or the Board, and as such this argument of the applicants has no basis or merits at all.

6.  As mentioned above, it is instead incumbent on the applicants to identify procedural or public law errors allegedly committed in my decision for their intended appeal, and in the absence of any viable grounds of appeal shown by them, I am not satisfied that their proposed appeal has any reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.

7.  In the premises and for the reasons given, I would not grant leave to appeal under section 14AA, and the applicants’ summons of 12 April 2019 is hereby dismissed.