RE MASRUROH IMAS AND ANOTHER

CAMP162/2019

[2021] HKCA 558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 162 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 337/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 23 April 2020, this court (Cheung JA and Barma JA) handed down a judgment dismissing the applicants’ application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 29 March 2019 refusing extension of time for applying for judicial review. The applicants had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing their appeal from the decisions of the Director of Immigration rejecting their non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicants subsequently applied, by a Notice of Motion dated 17 June 2020, for leave to appeal to the Court of Final Appeal out of time.  The applicants stated in the Notice of Motion that:

“I would like to apply for judicial review and appeal against the decision made by the Court of First Instance and TCAB. They disregard my danger at home.”

4.  In the affirmation dated 17 June 2020, the 1^st applicant deposed that:

“Leave to apply for judicial review in the CAMP as judges refused my application. My time is finished to make motion, please give chance to me for motion.”

5.  The applicants failed to comply with paragraph 3 of Practice Direction 2.1 and did not lodge the skeleton submission within 14 days after the application for leave was filed, despite having been reminded of the same by the direction made by the Registrar of Civil Appeals on 17 June 2020.  The applicants were therefore debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.  Having considered the Notice of Motion and the affirmation of the 1^st applicant, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicants’ application on the basis of the documents filed.

7.  We are of the view that the applicants have not provided any reasonable explanation for their delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

8.  The matters stated by the applicants do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicants have failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters they have raised.  

9.  In the documents filed by the applicants, they did not identify any error in our judgment.  They have therefore failed to advance any viable ground of appeal. Further, the complaints about the decisions by the Board and the Court of First Instance lack particulars and are therefore bound to fail.  In our view, none of the grounds of appeal advanced by the applicants is reasonably arguable in the Court of Final Appeal.

10.  On 27 November 2020, another division of this Court (Lam VP, Barma and Au JJA) handed down the judgment in Fabio Arlyn Timogan v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board, [2020] HKCA 971, CACV 32/2020. 

11.  In our view, that judgment cannot avail the applicants in the present case.  It is clear from the Board’s decision of 2 November 2017 that the Board assessed the 2^nd applicant’s claim separately from the 1^st applicant’s claim.  In particular, the Board identified Mr Andry as the only person alleged by the 1^st applicant to have the motivation to harm the applicants ([22] of Board’s Decision).  The Board considered that the history between Mr Andry and the 1^st applicant was not long and there would be a very low likelihood of him causing serious harm to either the 1^st or the 2^nd applicant ([29] of Board’s Decision).  In any event, the applicants could relocate to other parts of Indonesia, such as Jakarta, to avoid the threat from Mr Andry ([28] – [29] of Board’s Decision).  The Board did not accept the 1^st applicant’s contention that Mr Andry had influence over the Indonesian police and held that sufficient state protection is available ([26] of Board’s Decision).

12.  In our view, the Board had properly assessed the 2^nd applicant’s claim and duly given reasons for rejecting the 2^nd applicant’s claim.  There is nothing to indicate that the merits of the 2^nd applicant’s claim were not adequately explored before the Board.

13.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need to seek leave under Section 14AA of the High Court Ordinance (Cap 4) (“Section 14AA”) to appeal to this court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this court by way of appeal out of time, it cannot assist the applicants in this instance because:

(1)  the present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the court of Final Appeal regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in their appeals against the judge’s decision of 29 March 2019.  To achieve that they need to bring an appeal to this court;

(2)  due to lapse of time, the applicants need an extension of time to bring an appeal to this court and if they made such applications, the court will have regard to the merits of their intended appeal in deciding if extension should be granted; and

(3)  having regard to our views on the lack of merit in the intended appeal as set out at [15] to [21] of our judgment of 23 April 2020, the court will not grant an extension of time for a futile appeal to be brought.

14.  For the reasons that we gave in our judgment of 23 April 2020, we do not see any prospect of success in the applicants’ intended appeal against the judge’s decision and order.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

15.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

16.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

17.  For these reasons, the Notice of Motion dated 17 June 2020 is dismissed.