RE JUMIRAH

CAMP 409/2021

[2022] HKCA 230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 409 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1834 OF 2018)

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J U D G M E N T

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

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 13 July 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 1538). An earlier application for extension of time to appeal was refused by the Deputy Judge on 11 August 2021 (“the EOT Decision”)  ([2021] HKCFI 2145).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 30 August 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 17 August 2017 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

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

Background

4.  The applicant is a national of Indonesia.  She arrived in Hong Kong to work as a Foreign Domestic Helper in 2009 and was last permitted to remain until 7 June 2011.  She did not depart and overstayed in Hong Kong since 8 June 2011.  She was arrested by the Immigration Department on 9 January 2013.  She lodged a non-refoulement claim by way of written representation dated 26 January 2016, on the basis that she was in fear of being harmed by or arranged to marry her mother’s creditor if she returned to Indonesia.  Details of the applicant’s claim were summarised by the Deputy Judge at [4] - [6] of the Leave Decision.

5.  By a Notice of Decision dated 17 August 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  She attended and gave evidence at an oral hearing before the Board on 23 April 2018.  The Board dismissed her appeal on 30 August 2018 and confirmed the Director’s Decision.  The Board considered that there were significant differences between her oral evidence and the information she provided in her Non-refoulement Claim Form and the Board found that she had not told the truth about critical aspects of her claims.  Having assessed the evidence, the Board considered that the applicant failed to substantiate her claim on all applicable grounds. Accordingly, the Board dismissed her appeal.

The Leave Decision

7.  On 4 September 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant attended an oral hearing before the Deputy Judge on 2 October 2019 and an Indonesian interpreter was present to provide language assistance.

8.  By the Leave Decision, the Deputy Judge dismissed her application for leave to apply for judicial review for the following reasons:

“Application for leave to apply for judicial review

12. The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

13. In her affirmation in support of her application, she had written a few lines of Indonesian language. In the hearing when this Court explained the Board’s findings to her and asked her if she had any comments on the findings, she said she had no comments.

DISCUSSION

14. The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.

15. She had no comments on the Board’s findings. Since the Board did not believe her evidence on the facts of her case, she had no factual basis in support of her claim.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

17. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

18. Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Deputy 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 12 August 2020, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, she was over two weeks late with her intended appeal.  In the EOT Summons, no ground of appeal or reason for the delay was given by the applicant.  In her supporting affirmation, she only stated that she did not agree with the Director’s Decision and the Board’s Decision and that they did not consider her life.  She also claimed that the Deputy Judge erred in not considering her life problem.

11.  By the EOT Decision, the Deputy Judge noted that as the applicant was unable to say in what respect the Board had erred in the Board’s Decision, she had failed to raise any valid ground to show that she had any reasonable prospect of success in her intended appeal.  As such, her application for extension of time to appeal was dismissed.

The Present Application

12.  By a summons and supporting affirmation both filed on 27 September 2021, the applicant reapplied for extension of time to appeal.  In her summons and supporting affirmation, the applicant only stated that she did not receive the letter from the High Court.  She did not provide any evidence in support of her bare allegation or any ground of appeal.

13.  Pursuant to the directions given by the Registrar of Civil Appeals on 27 September 2021, the applicant lodged her written submissions on 11 October 2021.  In her submissions, she only stated that her non-refoulement claim was rejected by the Director and the Board and her application for leave to apply for judicial review was refused by the High Court.  She claimed that there were many errors in the Board’s Decision but she failed to specify what those errors were, if any.  She also did not provide any ground of appeal or identify any error in the Leave Decision.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  We consider that the applicant’s delay over two weeks as substantial and the applicant had failed to provide any cogent reason for her delay.  Although she claimed that she did not receive any letter from the Court, she failed to provide any specific particulars or evidence in support.  As such, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

16.  The 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].  In particular, in assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.  None of the matters raised by the applicant in her summons, supporting affirmation or written submissions for this application has identified any error in the Leave Decision.  As such, the applicant has failed to provide any proper ground of appeal.  There is simply no prospect of success in her intended appeal and it would be futile to extend time.

18.  For the above reasons, the application for extension of time to appeal is therefore refused and the applicant’s summons dated 27 September 2021 dismissed.