RE ANITA SUSILOWATI

CAMP 184/2019

[2021] HKCA 372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 184 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 605 OF 2017)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 27 June 2018 refusing to grant extension of time for her application for leave for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 2 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 16 February 2015 and 21 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia.  She entered Hong Kong on 14 February 2008 to work as a foreign domestic helper.  Her contract was prematurely terminated on 27 December 2008.  She overstayed in Hong Kong and was arrested by the police on 5 March 2009.  She later lodged a torture claim which was rejected.  She lodged a non-refoulement protection claim on 25 August 2014.

3.  The applicant’s claim was based on the threats from a man who lent money to her family and wanted to marry her.  The details of the applicant’s claim have been summarised by the judge at [6] to [8] of the CALL-1 Form.

4.  By a Notice of Decision dated 16 February 2015 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1] and the persecution risk^[2].

5.  By a Notice of Further Decision dated 21 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk^[3], and decided against her.

6.  The applicant appealed to the Board.  After a hearing on 13 March 2017, the Board dismissed the appeal on 2 June 2017 (“the Board’s Decision”).

7.  At [18] of the Board’s Decision, the Board held that her case was not credible and that she has not made out a case for non-refoulement protection.  The Board was also satisfied at [24] that state protection would be available for the applicant and at [37] that internal relocation would be viable.

8.  The applicant filed a Form 86 on 11 September 2017 which contained no ground for seeking relief.

9.  In her affirmation in support of the leave application dated 11 September 2017, the applicant advanced the following grounds for judicial review, which have been summarized by the judge at [14] of the CALL-1 Form:

“14. The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise she submits both decision-makers failed to properly consider and fairly deal with COI information. Both cherry-picked COI information that resulted in an unreasonable finding. Both failed to give adequate reasons for rejecting COI in the applicant’s favour. Both failed to give adequate reasons for rejecting the applicable grounds. Both failed to consider the concept of extended State acquiescence. Both failed to consider the mental suffering she endured. However, there are no particulars provided by the applicant for any of the grounds relied upon.”

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [15] to [17] of the CALL-1 Form:

“15. The adjudicator made a finding that the applicant was not at risk under any applicable ground according to the applicant’s own evidence. He set out in his decision his findings and reasons for his findings. He did consider state protection taking into account relevant, up-to-date and objective COI. The applicant did not rely on the concept of extended state acquiescence. The decision-makers did not consider this concept. In any event, the applicant made no report to the police or any authority. This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons. There are no merits in the grounds highlighted above.

16. I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an error of law made by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

17. In my judgement, even if I am wrong that her application is time-barred, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Application for extension of time to appeal and grounds for appeal

11.  By a summons dated 24 May 2019, the applicant sought leave to appeal out of time.  Her application was dismissed by DHCJ Bruno Chan on 24 July 2019.

12.  By a summons dated 6 August 2019, the applicant renewed her application before this court.  In the summons she stated that:

“I was late to file my leave application for judicial review, and I had stated my reasons in my affirmation why I was late to file my judicial review application.”

13.  Her application is supported by an affirmation dated 6 August 2019 where she deposed that:

“The reason I was late to file my judicial review, and I gave reasons in my affirmation why I was late to file my leave application for judicial review, failure to consider my reasons.”

14.  In her skeleton submissions dated 22 August 2019, the applicant submitted that:

(1) she was late in filing a notice of appeal because she was applying for a dependent visa.  She only brought the present application when an immigration officer informed her that she did not have any case in her application for visa;

(2) the Board and the Director failed to make sufficient inquiries into the country of origin conditions and failed to meet the high standard of fairness;

(3) the Board and the Director took into account irrelevant consideration; and

(4) the Board, the Director and the judges only considered that the risk of harm is low but did not match her case with the provisions of non-refoulement claim law. She will face risks upon her return.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

16.  We are of the view that the applicant has not provided any reasonable explanation for her delay in bringing the intended appeal.  Her desire to expedite the application for a dependent visa is not a valid excuse for not bringing the application for leave to appeal in time.

17.  The applicant claims that she had given a reason in her affirmation for the delay in bringing the application for leave for judicial review.  The judge has considered her explanation at [3] – [4] of the CALL-1 Form and held at [5] of the CALL-1 Form that there was no good reason to extend time because the merits are weak.  Therefore, the judge did not commit the error of failing to consider her reasons, as the applicant alleged in her affirmation dated 6 August 2019.

18.  In the skeleton submission, the applicant submitted that the judge failed to take into account the relevant legal provisions without identifying those provisions.  The applicant has not identified any valid ground of appeal against the judge’s decision.

19.  As for the other grounds of appeal, they are only concerned with the errors by the Board and the Director and are therefore not valid grounds of appeal.

20.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 6 August 2019 is dismissed accordingly.

21.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, Cap 4A, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.