RE SURATMAN LALU

CAMP 2/2022

[2022] HKCA 539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2022

(ON APPEAL FROM HCAL NO. 1311 OF 2021)

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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)  :

I.  Renewed application for extension of time to appeal

1.  On 20 September 2021, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 11 September 2020 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 24 December 2019 which rejected his non-refoulement claim.  The application for judicial was made out of time.

2.  In his decision of 18 November 2021, Deputy High Court Judge KW Lung refused to grant extension of time to the applicant to apply for leave to commence judicial review and dismissed his application for leave for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 6 December 2021 before the Judge requesting an extension of time to appeal.  The Judge on 23 December 2021 rejected the applicant’s application.  

4.  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.  On 3 January 2022, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal. The application was late by one day.

5.  Pursuant to the directions of the Registrar of Civil Appeals on 3 January 2022, the applicant was required to provide written submissions to the Court by 17 January 2022.  The applicant has failed to do so, and pursuant to paragraph 5 of the same directions, the applicant is now deemed to have abandoned his right to rely on written submissions, and his notice of appeal will be dealt with on paper.

II.  Factual background

6.  The applicant is a national of Indonesia.  He entered Hong Kong as a visitor on 1 April 2019 and overstayed. Upon surrendering to the Immigration Department on 1 August 2019, he lodged a non-refoulement claim by way of written representations on 1 August, 7 August and 18 September 2019 on the basis that he would be harmed or killed by creditors owing to a debt of some 192 million rupiahs for his business.

7.  The details of the applicant’s claim have been summarized by the Judge at [3] and [4] of the CALL-1 Form.

III.  The Director’s Decision

8.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 24 December 2019.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board and attended an oral hearing on 5 June 2020 before the Board.  The Board held that the applicant had not encountered any physical assaults inflicted by the debt collectors.  He was unable to establish his torture claim.  Further, the Board found that there was no state involvement in his monetary trouble, state protection is available and it was not unreasonable for the applicant to relocate elsewhere in Indonesia.  Therefore, the Board dismissed the applicant’s appeal against the Director’s Decision on 11 September 2020.

V.  Decisions of the Judge

10.  In his decision dated 18 November 2021, the Judge did not find any error of law, irrational findings, or procedural unfairness in the decision of the Board.  There was no Wednesbury unreasonableness or irrationality in the findings of the Board.  He stated that the applicant failed to show any realistic prospect of success in the intended judicial review.  

11.  In his decision dated 23 December 2021, the Judge held that the applicant was unable to set out any valid ground to challenge the Board’s Decision.  He also held that the applicant could not point out any error from the Court below.

VI.  Legal principles

12.  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.

VII.  Analysis

1)  Length of delay and reasons for the delay

13.  The applicant was late by about one day when he filed his application for extension of time to appeal, which is not significant and serious.  Therefore, we will turn to the merits of the intended appeal.

2)  Prospect of the intended appeal

14.  In the applicant’s summons and affirmation, the applicant simply repeated that his life would be in danger if he was returned to Indonesia.

15.  In our judgment, the applicant does not have any prospect of success in his intended appeal.  The Judge had considered all the relevant matters including the merits of his case when he refused to grant extension of time to apply for leave for judicial review and dismissed his application.

16.  Since the applicant has not identified any error of law or procedural unfairness in the Judge’s Decision of 18 November 2021, the intended appeal cannot have any prospect of success.

VIII.  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 3 January 2022.