SAMSIYAH SAMSUDIN v. TORTURE CLAIMS APPEAL BOARD

CAMP 391/2021

[2021] HKCA 1971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 391 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1156 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Chow JA (giving the Judgment of the Court):

1.  By a summons dated 15 September 2021, the Applicant applied for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 20 April 2021 refusing her application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  dated 29 May 2018 (“the Board’s Decision”).

2.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.  The Applicant is a national of Indonesia.  She last arrived in Hong Kong on 20 January 2008 and obtained permission to work as a foreign domestic helper until the expiration of her employment contract on 9 March 2009 or within 14 days of its early termination.  When her employment contract was prematurely terminated on 23 March 2008, she overstayed and was later arrested by police on 26 August 2010.  After she was referred to the Immigration Department for investigation, she lodged her non-refoulement claim on the basis that, if refouled to Indonesia, she would be harmed or killed by her father’s creditor for failing to assist her father to repay his loan.  The Applicant was subsequently released on recognizance pending the determination of her claim, during which she entered into a relationship with a man in Hong Kong and gave birth to a son in September 2014.  She raised a non-refoulement claim on behalf of her son on the same basis and asked that their claims be jointly determined, with an additional ground of fear of being harmed or discriminated against by the Muslim community for giving birth to a child out of wedlock.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.

4.  By a Notice of Decision dated 3 March 2016 and Notice of Further Decision dated 23 June 2017, the Director rejected the Applicant and her son’s non-refoulement claims on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decisions”).

5.  The Applicant and her son appealed the Director’s Decisions.  On 29 May 2018, the Board rejected the Applicant and her son’s appeal and confirmed the Director’s Decisions.

JUDGE’S DECISION

6.  On 21 June 2018, the Applicant filed a Form 86 for herself only seeking leave to apply for judicial review of the Board’s Decision.

7.  On 20 April 2021, the Judge refused to grant leave to the Applicant to apply for judicial review and dismissed her application.

8.  The Judge was not satisfied that the Applicant had a reasonable chance of success in her intended judicial review.  His reasons were set out at §§12-13 of Form CALL-1:

“12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision 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.

13.    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.”

9.  Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the Applicant within the 14-day period.

10.  On 27 May 2021, the Applicant filed a summons for extension of time to appeal the Judge’s order refusing to grant leave to apply for judicial review.  On 2 September 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed her application.

THIS APPLICATION

11.  In her summons and supporting affirmation dated 15 September 2021, the Applicant explained her delay in appealing against the Judge’s order on the basis that she did not receive the decision on time, and stated that she wanted to challenge the decision.  In her written submissions dated 29 September 2021, the Applicant repeated her fears if she was refouled back to Indonesia.

DISCUSSION

12.  In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  The prospect of success of the intended appeal is important: the court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

15.  We agree with the Judge that the Applicant’s delay of over 3 weeks in lodging her appeal was substantial, and she has not provided any good explanation for her delay.

16.  As for the merits of the intended appeal, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

17.  The Applicant has failed to identify any error on the part of the Judge in refusing to grant leave to apply for judicial review, or shown any viable grounds of appeal in her summons, supporting affirmation, or written submissions.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons of 15 September 2021 is dismissed.