RE TRI ASTUTI

HCAL 597/2018

[2019] HKCFI 1672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 597 OF 2018

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D E C I S I O N

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1.  On 30 April 2019 Deputy High Court Judge Josiah Lam refused to extend time for the applicant’s late application for leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and of the Torture Claims Appeal Board (“the Board”) in respectively rejecting her non-refoulement claim and her appeal/petition upon finding no good reasons for her one month’s delay with her leave application, that there was no reasonably arguable ground for her intended application, that the Board had not made any error of law in its decision or procedural unfairness in the process, and that there was no realistic prospect of success in her intended application.

2.  The applicant now by a summons issued on 16 May 2019 seeks leave to appeal against that decision out of time, as the 14-day period for her to lodge her appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 14 May 2019, and hence she was late by two days.

3.  The applicant explained at the hearing of her summons that she never received the Court’s decision and was only told of it when she reported to the Immigration Department and that by then she was already out of time to appeal, and hence she immediately issued her summons for extension of time.

4.  While a delay of two days cannot be said to be significant, and I am prepared to accept her explanation for her delay and to extend time, but as the Court’s decision to refuse to extend time for her late application for leave to apply for judicial review is interlocutory in nature: Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, section 14AA of the High Court Ordinance, Cap 4 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.

5.  In considering whether to grant leave to appeal, section 14AA(4) provides that it shall not be granted unless the Court hearing the application for leave is satisfied that:

(a)   the appeal has a reasonable prospect of success; or

(b)   there is some other reason in the interests of justice why the appeal should be heard.

6.  The threshold test for reasonable prospect of success was given by Le Pichon JA in SMSE v KL [2009] 4 HKLRD 125 when her Ladyship stated at §17:

“ The section requires that the court be 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 before granting leave. Reasonable prospects of success involve the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

7.  The applicant did not in her summons provide any draft or proposed ground of appeal, but in her supporting affirmation of the same date she stated as follows:

“ 6. … the Deputy Judge has erred in his decision for not granting me extension of time for application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board dated 1 December 2017 by a month. This is because I was and is suffering from breast cancer and due to my health issues I could not make an application within the time frame. I am uncertain as to whether or not the Deputy Judge has accepted or disregarded my health issues. Should the Deputy Judge accept my health issues, then my extension of time should have been granted on a discretionary basis. If the Deputy Judge has disregarded my health issues, it will be unfair and unlawful because the Deputy Judge has never asked for evidence regarding my health.

7. It seems to me that the Deputy Judge has refused to grantan extension of time because there was no good reason to justify my delay, when in fact I have.

8. The Deputy Judge did not refuse to grant an extension oftime on the basis of merits, and therefore just by considering mycase on the basis of length of delay and reason of delay, extensionof time for application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board dated 1 December 2017 should be granted.”

8.  Firstly, the learned deputy judge did properly consider the applicant’s health issues for her delay with her leave application for judicial review, as he elaborated in §40 of his decision:

“ The Applicant said she had suffered from cancer since 2015 and was hospitalized at times. However, she admitted she received the Board’s decision around 1 December 2017. She failed to prove she was in hospital between 1 December 2017 and 10 April 2018, when she filed the current application. The Applicant failed to explain for her delay in applying for leave for judicial review.”

9.  He then went on to consider the other reason for her delay in §§42 – 43:

“ 42. The Applicant complained she did not understand the Board’s decision due to her English deficiency.

43.   In the current application, a friend helped the Applicant to prepare Form 86 and her affirmation.  Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times.  The Applicant had much exaggerated her language problem.”

10.  The learned deputy judge, however, did not simply just consider the applicant’s reasons for her delay in refusing to extend time for her leave application, but also went on to consider the merits of her intendedapplication, as he was required to do so: see Re Thomas Lai [2014] 6 HKC 1;and AW v Director of Immigration [2016] 2 HKC 393.

11.  The applicant’s case for her non-refoulement claim before the Director and the Board was based on her fear of being harmed or killed by her abusive husband or his creditor for failing to repay his loan if refouled toIndonesia, which was accepted by both the Director and the Board without dispute but that her claim failed essentially as a result of their findings that state/police protection would be available and that the risk of harm in her claim is a localized one that it is not unreasonable or unsafe for her to relocate to other part of Indonesia.  These findings were never effectively challenged by the applicant in her leave application before the learned deputy judge.

12.  In considering the merits of the applicant’s intended application,the learned deputy judge stated in his decision as follows:

“ 25. The Adjudicator did not reject the Applicant’s allegations. However, even on the Applicant’s account of events the Adjudicator found there was no state instigation. The complained situation was only related to private loan dispute and domestic violence. It was not on account of any Convention reason (race, religion, nationality, membership of a particular social group or political opinion). The Applicant had not reported her case to the Indonesian authorities.

26. The Adjudicator considered the debt collectors had not inflicted serious harm on the Applicant and many years had passed since then.

27. As to domestic violence, the Adjudicator found the Applicant had not been severely hurt by her husband. After all,the couple’s relationship actually ended in January 2012. The husband was estranged from the Applicant and her family. He had agreed to the Applicant’s suggestion of divorce.

28. The Adjudicator considered relevant country-of-origin information (‘COI’). He found reasonable state protection was available to the Applicant but she had not sought help from the authorities. The Adjudicator also found internal relocation was viable.

29. The Adjudicator did not accept the Applicant faced any real risk that warranted non-refoulement protection. …”

13.  The learned deputy judge then went on to conclude in his review of the Board’s decision:

“ 46. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavor with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

14.  It is therefore clear to me that the learned deputy judge did properly consider all the relevant matters in his decision in refusing to extend time for the applicant’s late application for leave to apply for judicial review, and as such I am not satisfied that there is any prospect of success in the applicant’s intended appeal, or that there is any other reason in the interests of justice why the appeal should be heard.

15.  In the premises and for the reasons given, I refuse to grant leave for the applicant to appeal, and accordingly her summons is hereby dismissed.