RE DWI HARYATL

CAMP 60/2017

[2018] HKCA 7

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 176 of 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) on 25 August 2017 refusing leave to the applicant to apply for judicial review. The applicant, an Indonesian, came to Hong Kong in July 2012 to work as a foreign domestic worker. Her employment was terminated on 31 December 2013 but she did not return to Indonesia. She overstayed and was arrested on 27 January 2014. On 4 February 2014 she lodged a non-refoulement claim. The Director decided against her claim on 6 July 2015. By a Further Decision of 27 October 2016, the Director also rejected her application after assessment of BOR 2 risk. She appealed to the Torture Claims Appeal Board and the Board, after hearing her, dismissed the appeal on 11 April 2017. The intended judicial review was in respect of the two decisions of the Director and the decision of the Board. The Board rejected the non-refoulement claims of the applicant in respect of torture risk, BOR 3 risk, persecution risk and BOR 2 risk.

2.  The Judge refused leave on 25 August 2017 after hearing the applicant on 11 August 2017.  She gave the following reasons in refusing leave at [20] to [23] of the Form CALL-1:

“ 20. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the decisions to be without fault. Both analysed the material, claims and evidence carefully, logically and with caution. The applicant’s complaints in the affirmation against them and the procedures undertaken are not made out.

21. I found no substance in the grounds of this application. What was in the supporting affirmation does not cover all the grounds set out nor are they substantiated. For example, the Director and the adjudicator do refer to COI material they assessed and examined. It was objective, broad-based, relevant and up-to-date. The applicant’s criticism here is a bare assertion.

22. I do not find any ground that shows there was an error of law by the Director or the adjudicator. 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.

23. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

3.  According to court record, the CALL-1 form and the sealed order of the Judge were sent by post to the applicant on 25 August 2017.

4.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  She failed to do so.  On 30 November 2017, she applied by summons for extension of time to appeal.  Her application was supported by an affirmation.  In the affirmation, she said she was waiting for legal aid appeal which was scheduled to be heard on 14 December 2017.

5.  On 20 December 2017, she lodged a set of submissions.  In those submissions, she said she was still waiting for the outcome of the legal aid appeal.  She did not give further explanation for the delay.

6.  By reason of Order 59 Rule 2A and Rule 14A(1), this Court can determine an application for extension of time to appeal without an oral hearing.  The applicant had been notified of such possibility by the Registrar of Civil Appeals in the directions of 6 December 2017 before she lodged her submissions pursuant to such directions.

7.  We do not find the long delay between 25 August and 30 November 2017 to be excusable.  The applicant did not need to wait for the outcome of the legal aid appeal to lodge her appeal.  She was able to lodge her Form 86 and the summons of 30 November 2017 without legal aid. 

8.  In the absence of a cogent explanation for the delay, extension of time should not be granted under the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016.  

9.  We are unable to see any merit in her intended appeal.  In her submissions and affirmation, she said the Judge did not consider her fear as she faces a real risk upon refoulement.  She said the Director and the Board failed to consider psychological harm and possibilities to face harm upon refoulement.  The alleged risk flows from her husband’s long outstanding debt to an unscrupulous creditor called Ardianto.  She said that person used violence on her husband to pressurize for repayment and her husband in turn assaulted her. 

10.  After reading the Judge’s observations in the CALL-1 Form together with the detailed Reasons given by the Board in its Decision of 11 April 2017 as well as the Notice of Decision of the Director of 6 July 2015 and Further Decision of 27 October 2016, it is plain and obvious that the applicant’s case on risk of harm, including psychological harm, had been given careful consideration.  Though the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision makers are still the Director and the Board.  The court should not usurp the role of the Board.

11.  Having read the full decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusion on the lack of real risk.  We do not see any errors of law or procedure in the proceedings before the Board.  We agree with the Judge that leave to apply for judicial review should not be granted.

12.  For these reasons we do not see any, let alone real, prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 30 November 2017 is dismissed accordingly.

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