LATIFA BARAJA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 505/2022, [2023] HKCA 523

On appeal from [2022] HKCFI 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 505 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1116 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 19 July 2022, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1].

2.  On 22 September 2022, the applicant filed a summons for extension of time to appeal against that decision at the Court of First Instance. The applicant’s summons was dismissed by the judge on 21 October 2022[2].

3.  On 1 December 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4.  The applicant is a national of Indonesia. She entered Hong Kong on 14 January 2015 as a foreign domestic helper and her employment contract was terminated prematurely on 22 February 2015. She subsequently overstayed and was arrested by the police on 12 September 2015. On 23 September 2015, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 28 August 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 18 December 2018. The Board was not persuaded that the applicant has any well-founded fear of her husband as they had no contact since 2012 and there appears nothing that would force them to live with each other again. The Board also found that the applicant has reasonable possibility of internal relocation and protection from police is available to her in Indonesia. The Board concluded that the applicant failed to substantiate her non-refoulement claim and dismissed the appeal on 4 April 2019.

The intended judicial review

7.  On 25 April 2019, the applicant filed a Form 86 and an affirmation in HCAL 1116/2019 to seek leave to bring judicial review concerning her non-refoulement claim. She stated in her affirmation that the decisions of the Director and the Board are unreasonable as they merely relied on web reports.

The judge’s decision

8.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge directed that the Form 86 be amended to the effect that the Board is the proposed respondent and the Director is the interested party. The judge considered there is no error of law or procedural unfairness in the Board’s decision. As there is no realistic prospect of success in the applicant’s intended judicial review, he dismissed the leave application on 19 July 2022.

Grounds of intended appeal

9.  The applicant stated her grounds of appeal in the written submissions which may be summarised as follows:

(1)  She came to Hong Kong to save her life. Her enemy wanted to kill her and she has no way to save herself. Her enemy is very powerful so she is totally helpless in Indonesia. Places other than her home are also not safe for her.

(2)  The decisions of the Director and the Board are very unreasonable and painful for her.

Analysis and disposition

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 19 July 2022. The applicant was late by nearly 3 weeks when she took out the summons for extension of time to appeal at the court below on 22 September 2022, exclusive of the court’s summer vacation in August.

12.  The applicant explained that she failed to appeal within the prescribed time as she did not receive the decision from High Court in time. The court sent the decision to the applicant by post on the date of handing down the decision on 19 July 2022 to the applicant’s address as stated in her supporting affirmation which was filed on 25 April 2019 together with her Form 86. However, it is noted that she stated a different address in her affirmation filed with the court on 22 September 2022 but she has not filed any notice of change of address with the court before that. Under these circumstances, her explanation for the delay is not acceptable. It is the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). As the applicant’s delay is inexcusable, she must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The applicant’s grounds of appeal are just bare assertions without evidence in support. She failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision.

15.  For the above reasons, there is no prospect of success in the intended appeal. We refuse to grant extension of time to the applicant to appeal against the judge’s decision dated 19 July 2022. The summons filed on 1 December 2022 is dismissed.