RE DANIK DWI SUGIARTI

CAMP 28/2023, [2023] HKCA 762

On Appeal From [2022] HKCFI 2138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 299 OF 2022)

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D E C I S I O N

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

1)  Renewed application for extension of time to appeal

1.  On 5 May 2022, the applicant issued her application for leave for judicial review by Form 86 in HCAL 299/2022.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 8 March 2022 which dismissed her appeal against the decision of the Director of Immigration (‘the Director’)  dated 30 November 2021 rejecting her non-refoulement claim.  Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 26 July 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 9 September 2022).  Being out of time for about five days (since August 2022 was the Summer Vacation), the applicant took out an application on 14 September 2022 before the Judge requesting an extension of time to appeal.  The Judge on 28 December 2022 rejected the applicant’s application for extension of time to appeal.

3.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (i.e. 9 January 2023).  On 20 January 2023, being around 11 days out of time, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

4.  On 18 May 2023, the Appeal’s 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 entered Hong Kong as a foreign domestic helper in May 2018.  She was arrested in April 2020 for being suspected to be involved in a false domestic helper contract case.  She was later sentenced to a term of imprisonment.  When the applicant was discharged from prison she raised her non-refoulement claim on 28 September 2021 alleging that she would be harmed or killed by her ex-husband on her return because the applicant refused to reconcile with him.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 30 November 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 11 February 2022 over the telephone (for reasons set out in [27]-[28] of the Board’s Decision).  The Board dismissed the applicant’s appeal on 8 March 2022 and the Director’s Decision was confirmed.  The Board held that although there were certain factual matters for which the applicant should be given the benefit of the doubt, there were other factual matters that were against her.  The Board refused to accept that there was any threat from her ex-husband after their divorce in 2017.  The Board did not accept that the applicant changed her telephone number several times between 2017 and 2020 because the ex-husband contacted and threatened her.  The Board found that the applicant manufactured those allegations in order to apply for non-refoulement protection.  Upon the evidence considered, the Board does not consider the applicant will have a real risk of harm from her ex-husband if she returned to Indonesia.

5)  Decisions of the Judge

9.  In his decision dated 26 July 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 28 December 2022, 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.  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 26 July 2022.  The deadline for the appeal was 9 September 2022.  The applicant was about five days late when she filed her extension of time to appeal application on 14 September 2022.  The applicant made a bare assertion that she did not receive the decision in the mail, but the Court record showed that the decision was mailed to her on the same date without being returned undelivered. 

14.  The present summons for a renewed application for extension of time to appeal was filed on 20 January 2023 out of time.  She did not give reasons for her delay.

(2)  Prospect of the intended appeal

15.  In the applicant’s summons and affirmation, the applicant stated that she did not know English and court procedure and she does not think her case was determined fairly.  The applicant was provided with the assistance of both an interpreter and a duty lawyer at the screening interview stage and an interpreter at the Board hearing stage.  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].

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

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

18.  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

19.  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 20 January 2023.

20.  We would also (according to the applicant’s request for dismissal of appeal)  dismiss the applicant’s summons filed on 20 January 2023.