HERMININGSIH SUCIPTO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1044/2017

[2020] HKCFI 2756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1044 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application dated 26 August 2020 to appeal my decision of 7 August 2020, refusing leave to apply for judicial review.  The applicants had 14 days in which to apply to appeal that decision.  They did not do so.  They now require leave to extend time to appeal against that order.  The 1^st applicant attended Court on behalf of herself and the 2^nd applicant and had the benefit of aninterpreter.

Procedural Background

2.  The applicants are Indonesian nationals.  The 1^st applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  She was originally employed as a Foreign Domestic Helper in Hong Kong between 1999 and 2007. Thereafter she overstayed.  On 10 March 2015, she gave birth to the 2^nd applicant after an extra marital affair with a Pakistani national who is no longer in Hong Kong.  On 3 June 2015 she was sentenced to five months’ imprisonment for breach of condition of stay and after her release was sent to Castle Peak Bay Immigration Centre.  The applicants submitted non-refoulement claims on 19 January 2016 and the 1^st applicant was interviewed by the Director of Immigration (“the Director”) on 8 March 2016.  The Director dismissed their claims under all heads, by Notice of Decision on 8 April 2016 and by Notice of Further Decision 6 January 2017.  They appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Kay Ransome, heard the 1^st applicant on 18 January 2017.  The adjudicator refused their appeal on 4 May 2017.  

3.  They filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.  They were out of time.  Their application for extension of time for leave to apply for judicial review was refused on 7 August 2020.  This delayed date was as a result of administrative delays within the High Court.  They had 14 days from that date to appeal that decision, which would have expired on 21 August 2020.  By way of summons dated 26 August 2020, they seek leave to appeal out of time.

4.  An applicant does not normally require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)).  The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6).  The Court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.  

6.  Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his/her delay as this forms part of the consideration of whether there is good reason to allow an extension of time.  The 1^st applicant (on behalf of both applicants) accepted they were late but maintained that they had not received the correspondence from the Court until 21 August 2020. The 1^st applicant did not explain why this was the case.  The Court file suggests that it was properly served upon the address given at that time, which is the same address the applicant uses today.  The 1^st applicant maintains she received it late and then needed time to seek advice.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his or her attention in a timely manner[2].  The consequences of any delay arising from failing to do so will fall upon the litigant,[3] as is the case here. 

7.  Even if the Court does accept that the explanation given for the delay is a reasonable one, and no such explanation has been provided today, the Court is nevertheless required to examine whether there is any merit in the applicant’s appeal[4]. Whether there is any such merit will depend upon well‑established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim.  The 1^st applicant submits that she wishes to remain in Hong Kong until the 2^nd applicant completes his education.  She has not obtained an Indonesian passport for him and the father has long since gone.  If she is deported to Indonesia, her child will have no one to support him.  She has made no attempt to secure his future.  The question for the court is whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].

Conclusion

8.  The 1^st applicant has now been in Hong Kong since 1999.  She has been interacting with various government agencies since that date.  She remained illegally and was undetected for some eight years between 2007 and 2017.  The explanation she has offered to this court, as to why she did not receive the Order until 21 August 2020 is not acceptable.

9.  In any event, I have considered the underlying application.  It has no merit as explained in the initial refusal of leave.  There were no grounds of review and none could be ascertained from the papers at that time.  There was no complaint before the Court as to the decision to refuse leave.  The 1^st applicant merely wishes the Court of Appeal to consider their situation afresh as the 2^nd applicant was born in Hong Kong and does not currently have Indonesian nationality.  This was a deliberate act on the part of the 1^st applicant who believes she will not be deported if her child cannot go with her.  Having considered the length of delay, reason for the delay and the lack of any underlying merit of their application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10.  The applicants’ summons dated 26 August 2020 be dismissed.