RE SITI-MUTMAINAH

CAMP 149/2023, [2024] HKCA 97

On Appeal From [2022] HKCFI 3178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 149 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 673 OF 2022)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1) Renewed application for extension of time to appeal

1.  On 27 July 2022, the applicant issued her application for leave for judicial review by Form 86 in HCAL 673/2022. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 8 July 2022 which dismissed her appeal against the decision of the Director of Immigration (‘the Director’) dated 21 December 2021 rejecting her non-refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 14 October 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 28 October 2022). Being out of time for about 1.5 months, the applicant took out an application on 12 December 2022 before the Judge requesting an extension of time to appeal. The Judge on 6 April 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 11 April 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  On 31 August 2023, the Appeals Registry received a request from the applicant to dismiss her appeal.

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

2) Factual background

6.  Briefly stated, the applicant is an Indonesia national. She last entered Hong Kong with a valid passport in 2018 and was allowed to work in Hong Kong as a foreign domestic helper until October 2021 or within two weeks upon termination of contract whichever is the earlier. She eventually overstayed after termination of her contract. The applicant raised her non-refoulement claim in May 2021 and June 2021 alleging that she would be harmed or killed by her husband on her return. She also alleged that she would be harmed or killed by her husband’s creditors who lent him money.

3) The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 21 December 2021. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board. An oral hearing was conducted on 27 June 2022. The Board dismissed the applicant’s appeal on 8 July 2022 and the Director’s Decision was confirmed. The Board held that on the totality of the evidence, the applicant’s intention to seek protection in Hong Kong was suspicious and unreliable. The Board highlighted the problems in her evidence in terms of her family, the mortgage of her house, her relationship with her husband and the husband’s creditors. It held that her problems were private or domestic disputes without any official involvement. State and police protection would be available to her.

5) Decisions of the Judge

9.  In his decision dated 14 October 2022, the Judge held that no ground for seeking relief was stated in the applicant’s Form 86 or affirmation. There was no error of law or procedural unfairness.

10.  In his decision dated 6 April 2023, the Judge held that the applicant’s explanation for her delay was not acceptable. The Form CALL-1 was sent to the applicant’s last reported address without being returned undelivered on the same day as the Form CALL-1. She has provided no valid reason for her delay. The Judge held that importantly, the applicant did not put forward any proper grounds of appeal or particulars of error in the Judge’s decision. There was no prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6) Legal principles

11.  In considering whether to extend time for appeal, the Court will have regard to :

(1) length of the delay;

(2) reasons for the delay;

(3) prospect of the intended appeal; and

(4) prejudice to the putative respondent if extension of time was granted.

7) Analysis

(1) Length of delay and reasons for the delay

12.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

13.  The Form CALL-1 decision was handed down on 14 October 2022. The deadline for the appeal was 28 October 2022. The applicant was about 1.5 months late when she filed her extension of time to appeal application on 12 December 2022. The applicant made a bare assertion that another resident of her building took her mail, but the Court record showed that the decision was mailed to her on the same date without being returned undelivered.

(2) Prospect of the intended appeal

14.  In the applicant’s summons and affirmation, the applicant stated that she was unrepresented and did not have access to any legal advice. This is not true as she was represented by duty lawyer before the Director. It is trite that legal assistance and language assistance are not required to be provided at all stages of the legal process in order for there to be a high level of fairness in the proceedings: Re Gurnishan Singh [2018] HKCA 704 at [13]; Re Zunariyah [2018] HKCA 14 at [16-20]. In the applicant’s written submissions, she referred to case authorities and statutory provisions that are used in non-refoulement cases generally without particularizing how they relate to her case.

15.  In our judgment, the applicant does not have any prospect of success in her intended appeal.

16.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

17.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8) Disposition

18.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 11 April 2023.

19.  We would also dismiss the applicant’s summons filed on 11 April 2023 in accordance with the applicant’s request for dismissal of appeal.