Kasirah v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 599/2017

[2019] HKCFI 2326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 599 OF 2017

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D E C I S I O N

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1.This is an application for an extension of time to appeal against my decision dated 25 June 2018 refusing this applicant leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limits to appeal an interlocutory order. The applicant had 14 days in which to apply to the Court of Appeal pursuant to Order 53 rule 3(4). She failed to do so. She now requires and seeks leave to extend time to appeal against that order. This application is dated 6 August 2019 and she has filed an affirmation to support it.

2.The applicant filed a Form 86 on 7 September 2017, a notice of application for leave to apply for judicial review. She did request an oral hearing and I set down a hearing date on 1 February 2018. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 4 August 2017. The adjudicator of the TCAB rejected the applicant’s non-refoulement protection claim; she did not find the applicant was a genuine claimant. She found discrepancies and inconsistencies in her claim and evidence. In her decision, she set out those discrepancies and inconsistencies in full.  She gave full reasons for her conclusions and dismissed the applicant’s appeal/petition.

3.The applicant was initially a foreign domestic helper from Indonesia legally working in Hong Kong from between 2006 and 2014. When her last contract was prematurely terminated, she did not depart within two weeks and overstayed from 24 April 2014. She was arrested by the Immigration Department on 7 April 2016 for overstaying and working illegally. She served a two-month term of imprisonment and then lodged a non-refoulement protection claim. She has recently been rearrested for illegally working and now remanded by the Immigration Department.

4.Despite the TCAB adjudicator’s findings that the applicant was not a genuine claimant, she went on to consider state protection and found that it was available if the applicant was at any risk. She went on to consider internal relocation and found that it would be a viable option without undue hardship for the applicant. She could return to Indonesia and relocate without undue hardship from her village where she lived with her abusive husband some 13 years ago.

5.I did consider with rigorous examination and anxious scrutiny the papers and grounds of that application for leave to apply for judicial review. The adjudicator’s decision was without fault. She analysed the applicant’s claim and evidence with care and I found no substance in the eight grounds of that application. Eight grounds that contained no particulars. I found no error of law by the adjudicator. I found no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.

6.In the applicant’s affirmation to support leave to appeal out of time, she suggests that she did not receive my order of 25 June 2018. She states that I reached my decision to refuse her leave to apply for judicial review unfairly because I did not give her an opportunity to clarify her situation in her country and explain her case. However, she retracted this ground during the oral hearing when I reminded her of the details of her submissions to me on 1 February 2018 when I considered leave to apply for judicial review. She also submitted that the 14-day time limit was insufficient for a litigant in person.

7.During the oral hearing she confirmed that she was, prior to her detention by the Immigration Department recently, still living at the same address she supplied in September 2017. Despite that, she did not receive my order. This was her reason for failing to comply with the 14-day time limit to file a notice of appeal.

8.In her summons, she suggests that she had a new ground of appeal but during the oral hearing, she was unable to articulate any ground. She only asked that she be allowed to apply again for judicial review. She repeated that she was still in danger at home in Indonesia and asked for another chance.

Conclusion

9.The delay is substantial, a delay of just over 13 months. I have verified her address had not changed. I am not satisfied she has a reasonable explanation for the delay in bringing the intended appeal.

10.In any event, the length of delay is not the only fact I should take into account when considering whether to grant an extension of time to file an appeal. It is not this court’s duty to reconsider an applicant’s claim but to consider whether the adjudicator of the TCAB made any error of law or whether there is evidence of procedural unfairness or a failure to adhere to a high standard of fairness. I found when I refused leave to apply for judicial review that the applicants claim was not reasonably arguable and there was no realistic prospect of success. Having heard from the applicant during the oral hearing for this application, I find there is no merit nor any real prospect of success in any intended appeal.

11.Having considered the lengthy and substantial delay, the lack of reasonable excuse for the delay and the lack of merit in this application, it would not be in the interests of justice to grant an extension of time. The applicant’s summons dated 26 August 2019 is dismissed.

The applicant appeared in person.