RE INTAN RATNASARI

CAMP 74/2023, [2023] HKCA 1211

On Appeal From [2022] HKCFI 867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 74 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 77 OF 2022)

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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 24 March 2022, DHCJ Bruno Chan (“the Judge”) refused to grant leave for the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the 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.  On 23 September 2022, the applicant took out a summons to apply for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 19 January 2023. 

3.  On 17 February 2023, the applicant filed a summons in CAMP 74/2023 (“the Summons”) with the Court of Appeal for extension of time to appeal against the JR Decision.  She lodged her written submissions on 7 March 2023.

4.  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

5.  The Applicant is a national of Indonesia.  She last arrived in Hong Kong on 13 August 2019 with permission to work as a foreign domestic helper but claimed she did not take up the employment as she had her contract terminated by the employer before it even commenced.  She was arrested by the police for making a false representation to an immigration officer on 22 March 2021.  On 28 June 2021, she raised a non-refoulement claim on the basis that she would be harmed or killed by her husband and/or his creditor for failing to help him repay his loan if she is to be returned to Indonesia.  The factual background of this case was succinctly summarised by the Judge at [1] – [4] of the JR Decision ([2022] HKCFI 867).

6.  By a Notice of Decision dated 9 September 2021, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], BOR 3 risk[2], torture risk[3], and persecution risk[4].

7.  The applicant appealed against the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  She attended an oral hearing on 12 November 2021.  By its decision dated 22 December 2021, the Board dismissed the appeal.  The Board considered that the applicant’s evidence is self-contradictory and unconvincing.  It further held that the domestic disputes she might have experienced before could not be said to have been acquiesced in by the state authorities.  The Board also found that state protection and internal relocation options would be available to the applicant in Indonesia.  Therefore, the Board rejected the applicant’s claim on all applicable grounds and dismissed the appeal. 

Application for leave to start judicial review

8.  On 20 January 2022, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  She did not put forward any specific grounds for her intended challenge.

The JR Decision

9.  The Judge considered the application on paper as the applicant did not request for an oral hearing.  After due consideration of the decision of the Board, the Judge refused to grant leave for the applicant to apply for judicial review for reasons set out in [9] and [11] to [12] of the JR Decision:  

“9. On 20 January 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge….

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Application for extension of time to appeal against the JR Decision

10.  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 23 September 2022 for an extension of time to appeal.  That was dismissed by the Judge on 19 January 2023.  Hence, the Summons to this court.

Discussion

11.  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). 

12.  As for (1), the applicant was late by more than 4 months when she filed the summons with the Court of First Instance for extension of time.  The delay was substantial.

13.  As for (2), the reasons for the delay, the applicant alleged in her affirmation that she did not get the court’s decision in time.  The court sent the JR Decision to the applicant’s address as stated in her Form 86 but the mail was returned by the post office.  The court was subsequently provided with the new address of the applicant by the Immigration Department and sent the JR Decision to the applicant again on 8 April 2022.  The delay in receiving the JR Decision was caused by the applicant’s failure to inform the court of her change of address for service.  The applicant also failed to explain the further delay after receiving the JR Decision in April 2022.  Under these circumstances, her substantial delay is not justifiable.

14.  The most important consideration is (3), the prospect of success of the intended appeal from the JR Decision. 

15.  In her supporting affirmation, the applicant only stated that she does not agree with the court’s decision but did not provide any specific grounds of appeal.

16.  In her written submissions, she reiterated that her life is not safe in her motherland and her problem is true.

17.  In the present application, the applicant failed to identify any errors of law, or failure to take account of relevant matters already placed before the court, or any other mistakes in the JR Decision.

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

19.  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 17 February 2023.