RE SRI LESTARI HANDAYANI

CAMP 368/2021

[2021] HKCA 1790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 368 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1900 of 2018)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s renewed application for extension of time to appeal against the order of Deputy High Court Judge Lung (“the Judge”) given on 4 August 2020 refusing her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of her application.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) refusing her non-refoulement claim.

5.  The applicant is a national of Indonesia aged 38.  She entered Hong Kong on 9 August 2012 and was given permission to remain to work as a domestic helper.  After her employment contract was prematurely terminated on 24 July 2013, she overstayed and was arrested by the police on 1 September 2014.  She later raised a non-refoulement claim based on fear of being harmed or killed by her brother-in-law because of an assault carried out by her brother and friends.  The details of the applicant’s claim were set out in the Director’s decision at [7].  We will not repeat them.

6.  By his decision dated 27 June 2017, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 25 May 2018, during which the applicant answered questions from the Board.  By its decision dated 3 September 2018, the Board dismissed the appeal.  The Board considered the applicant’s evidence was vague and confusing in material aspects of her claim, and found her not to be a credible witness.  The Board did not accept the applicant’s claims that she will be harmed on return to her country to be well founded or credible.  The Board also did not accept that her brother-in-law or his family members had threatened her.  While the Board accepted she had converted to Catholicism in Hong Kong, it did not accept the appellant faces a real risk of harm from other Indonesians of the Muslim faith if she returns to Indonesia.  The Board concluded that the applicant is not entitled to non-refoulement protection on any of the applicable grounds.

8.  On 11 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The applicant did not set out any ground for seeking relief.  The Judge dealt with the application on the paper. By a Form CALL-1 dated 4 August 2020[5], the Judge dismissed the application principally on the ground that there is nothing to show that the Board had committed any error in the finding of fact or application of the law.                          

9.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 14 September 2020.  This is because by reason of section 31(1) High Court Ordinance, Cap. 4, the month of August which is the summer vacation (see section 29(2) of High Court Ordinance and Order 64 rule 1(1) of the Rules of the High Court) is to be excluded in calculating the 14-day time limit for filing the Notice of Appeal. 

10.  On 4 September 2020, the applicant filed a summons together with an affirmation to apply for an extension of time to appeal the Judge’s decision.  As explained above, the time for the applicant to appeal did not expire until 14 September 2020; hence it is not necessary for her to apply for an extension of time to appeal.  Unfortunately, this mistake was not picked up.  The Judge dealt with the application on the papers, and by his decision handed down on 29 July 2021[6], refused the application.

11.  On 3 September 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

12.  Although, as noted above, the applicant did not initially need an extension of time to appeal, by the time she filed the present summons, the time for appealing had expired.  In deciding whether to extend time for appealing against the Judge’s decision refusing her leave to apply for judicial review, the court has to consider: (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. 

13.  In the circumstances of this case, the applicant’s delay is excusable.  We turn next to consider the prospects of success of the intended appeal.           

14.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  In the present application, the applicant did not set out any ground for the intended appeal in her summons or supporting affirmation.

17.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also made reference to the Wednesbury unreasonableness principle.  It is said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim.  It also complained that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing the applicant’s credibility.  The written submission further recited section 37ZT(2) of the Immigration Ordinance, which provides that when deciding whether to allow a late filing of notice of appeal, the Board may only take account of (i) the statement of reasons in the application for late filing and any accompanying documents; and (ii) any other relevant matters of fact within the knowledge of the Board.      

18.  In our view, the written submission did not contain arguable grounds of appeal against the Judge’s decision.  It was not shown how the cases cited and the legal propositions quoted in the written submission relate to the applicant’s case.  The reference to section 37ZT(2) of the Immigration Ordinance is entirely irrelevant as the applicant was not late in her appeal to the Board.     

19.  We have in any event examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  The Judge was correct in finding the intended judicial review has no reasonable prospect of success and refusing to give leave to apply for judicial review.

20.  As the applicant’s intended appeal against the Judge’s refusal of leave to appeal for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 3 September 2021