RE INDUNG DWI PRAHESTI

CAMP 62/2023, [2023] HKCA 1228

On Appeal From [2022] HKCFI 2698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 62 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 572 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 31 August 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 22 September 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 19 January 2023. 

3.  On 10 February 2023, the applicant filed a summons in CAMP 62/2023 (“the Summons”) in the Court of Appeal for extension of time to appeal against the JR Decision.  She lodged written submissions on 24 February 2023.

4.  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

5.  The applicant is a national of Indonesia.  She first arrived in Hong Kong on 1 December 2008 with permission to work as a foreign domestic helper.  Her employment was prematurely terminated on 4 January 2010 and her application for extension of stay was refused.  She then left Hong Kong for China and returned on 4 February 2010 as a visitor.  She was allowed to remain until 5 February 2010 but subsequently overstayed.  She was arrested by the police on 13 June 2010.  She raised a torture claim on 11 August 2010 which was rejected on 14 May 2012.  On 3 June 2013, she lodged a non-refoulement claim alleging that if refouled, she would be harmed or killed by her late father’s creditor over his unpaid debts and/or by her widowed mother’s boyfriend for refusing to marry the creditor in lieu of the loan repayment.  The factual background of this case was succinctly summarised by the Judge at [1] – [4] of the JR Decision ([2022] HKCFI 2698).

6.  By a Notice of Decision dated 31 July 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim.  As the applicant’s torture claim had already been refused, the Director did not review the applicant’s claim on the ground of torture risk[1].  The Director’s decision covered the BOR 2 risk[2], the BOR 3 risk[3] and the persecution risk[4].

7.  The applicant appealed against the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) on 6 August 2018.  She attended an oral hearing on 6 November 2018.  By its decision dated 20 February 2019, the Board dismissed the appeal.  The Board considered that the threats from the creditor were just empty threats.  Evidence shows that the threats were ongoing for nearly two years but the creditor had not done anything pursuant to the threats.  The Board also found the mother’s boyfriend was merely a messenger for the creditor, and even on her own case, he had only slapped her once on the face in the heat of an argument.  No other injuries had been inflicted on the applicant.  The Board further assessed that internal relocation is a viable option for the applicant to avoid the creditor and her mother’s boyfriend.  Therefore, the Board concluded that the applicant failed to establish her claim on any of the applicable grounds.

Application for leave to start judicial review

8.  On 28 February 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  She did not put forward any specific ground for her intended challenge in her application.

The JR Decision

9.  The Judge considered the leave application on paper as the applicant did not request for an oral hearing.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [9], [11] and [12] of the JR Decision:  

“9.  On 28 February 2019, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality 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 for her intended challenge.

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

12.  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

10.  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 22 September 2022 for an extension of time to appeal.  That was dismissed by the Judge on 19 January 2023. Hence, the Summons to this court.

Discussion

11.  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). 

12.  As for (1), the applicant was late by 8 days when she filed the time extension summons with the Court of First Instance which is not substantial.

13.  As for (2), the reasons for the delay, the applicant alleged in the affirmation that she did not get the court’s decision in time.  However, she did not provide any evidence in support, nor did she say when or how she actually received the decision.

14.  Even if the court is minded to accept her explanation in light of the short delay, the most important consideration is (3), the prospect of success of the intended appeal from the JR Decision. 

15.  The applicant did not provide any valid ground of her intended appeal in the Summons.  In her supporting affirmation, she only reiterated her factual allegations.

16.  In her written submissions, she contended that the Director only believed in documents and she was unable to provide suitable documents because it was not possible for her to bring any document when she left her country. She did not say what documents she had.  She also submitted that there are many errors in the process of the Board’s decision, without specifying what she was referring to.

17.  The said complaints were not raised in the applicant’s application for leave in the court below.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below: Re Qadir Sher [2018] HKCA 160 at §11. 

18.  In any event, her non-refoulement claim was not rejected by the Board for lack of documentary evidence. 

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

20.  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 10 February 2023.