RE BERNADETA SERAN

CAMP 329/2022, [2023] HKCA 586

On Appeal From [2022] HKCFI 762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 329 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2616 OF 2018)

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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 November 2018, the applicant issued her application for leave to apply for judicial review by Form 86 against the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (‘the Board’)  dated 18 September 2018.

2.  By a decision dated 28 March 2022 ([2022] HKCFI 762)  (‘the Decision’), Deputy High Court Judge K W Lung : 1)  refused to grant the applicant leave to apply for judicial review; and 2)  dismissed her application.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court (Cap. 4A) (‘RHC’), the applicant had 14 days to appeal against the Decision (by 11 April 2022). However, it was not until 5 July 2022 that the applicant took out a summons seeking extension of time to appeal.  The applicant was out of time for almost three months.  By a decision dated 28 July 2022 ([2022] HKCFI 2194), the Judge refused the applicant’s application for extension of time to appeal.

4.  By summons dated 1 September 2022 (‘the Summons’), the applicant renewed her application to this Court for extension of time to appeal.

5.  Pursuant to the directions of the Registrar of Civil Appeals dated 1 September 2022, the applicant was to lodge written submissions in support of her renewed application on or before 15 September 2022.  The applicant has lodged her written submissions as directed.

6.  Under Order 59 rule 14A(1)  of the RHC, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

7.  The applicant is a national of Indonesia.  She entered Hong Kong on 10 December 2014 as a foreign domestic helper.  Her permission to remain in Hong Kong came to an end on 28 February 2016.  She was subsequently permitted to stay as a visitor until 11 March 2016.  She did not depart and overstayed.  On 8 June 2016, the applicant surrendered to the Immigration Department.  She made a non-refoulement claim on 22 March 2017, 1 April 2017 and 7 April 2017.

8.  The basis of the applicant’s claim was that if she returned to Indonesia, she would be harmed or killed by loan sharks.  The applicant says that her father had borrowed large sums from five different loan sharks.  Her father passed away in 2008.  She then assumed the repayment obligations.  However, since 2011, she started to default in her repayments.  Since then, the loan sharks had been harassing her and her family.  At the end of 2013, there was flooding and she lost contact with her siblings.  The applicant thinks that the loan sharks killed her siblings.  Out of fear, the applicant stayed in Hong Kong for protection.

III.  The Director’s decision

9.  By a decision dated 12 March 2018, the Director of Immigration (‘the Director’)  rejected the applicant’s claim in respect of torture risk, risk relating to right to life under Article 2 of the Bill of Rights (‘HKBOR’), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR, and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.  The Director found the applicant’s claim unsubstantiated.  The Director also found that the risk of harm from the loan sharks upon refoulement was low, there would be state protection available to the applicant, and internal relocation was an option open to the applicant.

IV.  The Board’s decision

10.  The applicant then appealed to the Board.  An oral hearing was held on 30 July 2018.  By a decision dated 18 September 2018, the Board dismissed the applicant’s appeal.  While the Board accepted the applicant’s factual evidence as reliable, the Board stated that it was unlikely that there were substantial grounds to believe that the applicant faced a real risk of being tortured by loan sharks.  It was also found to be a private dispute without state involvement.  There was state protection available, and internal relocation was also an option.

V.  The Judge’s Decision

11.  By the Decision, the Judge agreed with the reasoning of the Board.  The applicant has submitted no valid ground to challenge the Board’s decision.  There was no error of law or procedural unfairness in the Board’s decision.

12.  The Judge hence refused to grant leave to the applicant to apply for judicial review and dismissed her application.

13.  By the decision dated 28 July 2022, on the basis that the applicant had not identified any valid ground of appeal, the Judge refused to extend time for the applicant to appeal.

VI.  Legal principles

14.  In considering whether to extend time to 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 an extension of time is granted.

15.  See, e.g., Re Chauhan Manish [2023] HKCA 431 [15].

VII.  Analysis

1)  Length of delay and reasons for delay

16.  As noted above, the applicant was out of time for about three months in her attempt to appeal against the Decision.  The delay is substantial.

17.  In her affirmation dated 1 September 2022, the applicant says that the delay is attributable to the fact that she was unrepresented and did not have access to any legal advice. 

18.  We do not accept that to be a valid explanation for the lateness.  In any event, we will also examine the merits of the applicant’s intended appeal.

2)  Prospect of the intended appeal

19.  The applicant’s written submissions refer to the high standards of fairness required in the disposition of her non-refoulement claim.  We do not think that the applicant has a valid complaint in this regard.  At issue is whether the circumstances as described by the applicant (whose factual account was accepted by the Board to be reliable)  were sufficient to substantiate the applicant’s non-refoulement claim.  Both the Board and the Judge held that it did not, since, among other reasons, it was only a private dispute without state involvement, that there was state protection available, and internal relocation was also an option.

20.  In other words, none of the materials put forward by the applicant disclose any valid ground of appeal. The Judge has considered all the relevant matters, including the merits of the applicant’s case when he refused leave to apply for judicial review and dismissed her application.  We detect no error in the Judge’s analysis.

21.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any reasonable prospect of success.

VIII.  Disposition

22.  The intended appeal is unarguable.  It would be futile to grant an extension of time to appeal in those circumstances.  Accordingly, we dismiss the Summons.