RE SUMIARSIH BT NARPAN RACIM

CAMP 146/2023, [2023] HKCA 1153

On Appeal From [2022] HKCFI 3202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 146 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 626 OF 2019)

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J U D G M E N T

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

1.  On 25 October 2022, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  On 15 December 2022, the applicant took out a summons to apply for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 6 April 2023.

3.  On 11 April 2023, the applicant filed a summons in CAMP 146/2023 (“the Summons”) with the Court of Appeal for extension of time to appeal against the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 11 April 2023, the applicant lodged her written submissions on 18 April 2023.

5.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is an Indonesian national. She came to Hong Kong on 18 July 2013 with permission to work as a foreign domestic helper. Her last employment contract was prematurely determined on 24 September 2013. She subsequently overstayed and was arrested by the police on 27 April 2015. She then lodged a non‑refoulement claim alleging that if refouled, she would be harmed or killed by her late husband’s creditor because of his outstanding debts. The factual background of this case was succinctly summarised by the Judge at [2] – [5] of the JR Decision ([2022] HKCFI 3202).

7.  By a Notice of Decision dated 9 January 2018, the Director of Immigration (“the Director”) had decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  On 18 January 2018, the applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 3 January 2019. By its decision dated 26 February 2019, the Board dismissed the appeal. The Board found the applicant’s evidence to be wholly unreliable because of material inconsistencies therein (such as who had borrowed money, the amount of the loan, the name of the creditor, the interest on the loan, etc) and her failure to give a convincing explanation for the discrepancies. For the aforesaid reasons, the Board concluded that the applicant failed to establish her claim on any of the applicable grounds.

Application for leave to start judicial review

9.  On 5 March 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision. In her supporting affirmation, she only stated that she would not like to go back to her country and was not satisfied with the decision, without putting forward any specific ground for her intended challenge.

The JR Decision

10.  The Judge considered the leave application on paper as the applicant did not request for an oral hearing. After due consideration of the decisions of the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [12] - [14] of the JR Decision:

“12. Essentially the Board rejected the Applicant’s claim on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 44 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing before the Board, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Application for extension of time to appeal against the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time. She filed a summons in the Court of First Instance on 15 December 2022 for an extension of time to appeal. That was dismissed by the Judge on 6 April 2023. Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

13.  As for (1), the applicant was late by more than 5 weeks when she filed the time extension summons with the Court of First Instance, which is considered substantial.

14.  As for (2), the reasons for the delay, the applicant explained at the hearing before the Judge that she did not receive the JR Decision from the court.

15.  The court sent the JR Decision by post to the applicant’s address as stated in her Form 86 on the date of handing down on 25 October 2022. It was not returned to the court by the post office. It is noted that the applicant later stated a new address in her summons for extension of time to appeal filed on 15 December 2022. However, she had not filed any notice of change of address for service with the court before that. It is the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]). As such, we do not see any justification for the applicant’s delay.

16.  The most important consideration is (3), the prospect of success of the intended appeal from the JR Decision. Where the applicant’s delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

17.  The applicant did not provide any valid ground of her intended appeal in the Summons and supporting affirmation filed with this Court.

18.  In her written submissions, she reiterated that there is threat to her life in her motherland so she cannot return. She further submitted that the adjudicator did not give her a lawyer, and the interpreter did not translate all her statements properly.

19.  The said complaints were not raised in the applicant’s leave application at the court below. In any event, the Court of Appeal has repeatedly stated that an applicant in a non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The applicant already had the benefit of legal representation in presenting her case to the Director of Immigration. Besides, her complaints regarding the interpreter are not supported by any particulars or evidence, such as when she first realised any error or incompleteness with the interpretation, and why she had not raised it before now.

20.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

21.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 11 April 2023.