MIFTAHUL KHUROTA AYUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 314/2022

[2023] HKCA 251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 314 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 109 OF 2022)

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J U D G M E N T

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

1.  On 25 May 2022, Deputy High Court Judge To refused the applicant’s application for extension of time for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 24 August 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3.  On 26 August 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge.

4.  The applicant is a national of Indonesia. She is 39 years old. She entered Hong Kong to be employed as a foreign domestic helper on 14 May 2008 but was prematurely terminated. She did not return to Indonesia and as per her non-refoulement claim form dated 17 January 2017 received by the Immigration Department on 23 January 2017, she sought non-refoulement protection on the basis that she would be harmed or killed by loan sharks due to a debt incurred by her father.

5.  By a Notice of Decision dated 8 February 2017, the Director rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision but failed to attend the hearing scheduled on 12 January 2018 before the Board. The Board had properly served a written notice on the applicant but no response was received. Therefore, the Board determined the applicant’s appeal on paper in her absence. The Board was not satisfied on the available materials that the applicant’s case was proved and that she would be at risk of harm if she is returned to Indonesia. In light of its findings, the Board rejected the applicant’s claim on 11 July 2018.

The judge’s decision

7.  On 31 January 2022, some 3 years later after the decision of the Board, the applicant applied for leave to apply for judicial review. She did not provide any grounds in her application or her affirmation in support, other than stating that she did not wish to return to Indonesia as her life is still at risk there.

8.  The applicant’s written submissions received by the Court on 19 April 2022, recited general principles in non-refoulement cases but did not elaborate or explain their relevance to her situation. In any event, the judge rigorously examined the Board’s decision and found no fault with the Board. There was no realistic prospect of success in the applicant’s proposed judicial review. Furthermore, there was no explanation of the delay of three years by the applicant in bringing her application to seek leave for judicial review.

9.  The applicant further failed to attend the hearing scheduled before the judge on 19 April 2022. In the circumstances, the judge refused to grant the applicant extension of time to seek leave for judicial review on 25 May 2022.

Grounds of appeal

10.  The applicant did not provide any grounds of appeal in her summons or her affirmation in support, other than stating that she disagreed with the decisions of the authorities. As for the applicant’s written submissions, she complained that the decision of the Board was reached unfairly but did not give any particulars in support. She also complained about the lack of legal and language assistance for her case.

Analysis and disposition

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 25 May 2022. The applicant took out a summons for extension of time to appeal at the court below on 17 June 2022. She was late for about 9 days. As the delay was not too long, we shall focus on the merits of the case.

13.  In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  The applicant has not provided any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant her extension of time to seek leave for judicial review. In respect of the applicant’s complaint regarding the lack of language and legal assistance, this issue was extensively dealt with by the judge at §17 of his decision dated 25 May 2022. In any event, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 25 May 2022 and dismiss the summons filed on 26 August 2022.