Re Suyanti and Another

CAMP 252/2019

[2020] HKCA 361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 252 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 216/2018)

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Before:  Hon Lam VP and Au JA in Court

Date of Written Submissions:  8 November 2019

Date of Judgment:  28 May 2020

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JUDGMENT

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

Background

1.On 31 March 2017, the Torture Claims Appeal Board (“TCAB”) rejected the applicants’ non-refoulement claim (“the TCAB Decision”).  Under Order 53 r.4 of the Rules of the High Court (“RHC”), an application for leave to judicially review the TCAB Decision should be made, at the latest, within 3 months of that decision.

Late application for leave for judicial review

2.However, the applicants only filed their application for seeking time extension for leave to judicially review the TCAB Decision on 12 February 2018.  Their application was out of time for more than 7 months.  Nevertheless, under Order 53 rule 4 RHC, the court has a discretion to extend time if there is good reason for extending the period.   

The Judge’s December Decision

3.The matter came before Deputy High Court Judge Bruno Chan (“the Judge”) who considered the papers and heard the 1^st Applicant in court.  On 21 December 2018, the Judge in the exercise of his discretion refused to grant an extension of time, giving reasons as set out in the Form CALL-1 dated 21 December 2018, [2018] HKCFI 2816 (“the Judge’s December Decision”).

Application to the Judge for leave to appeal

4.On 31 December 2018, the applicants filed a summons together with the Affirmation of Suyanti before the Judge seeking leave to appeal from the Judge’s December Decision.  The 1^st Applicant stated in the summons that she did not get the order on time.  In her supporting affirmation, she complained that she did not have legal representation and assistance to process the intended appeal.  In addition, she complained that the decisions made by the Director of Immigration and the TCAB were wrong.

The Judge’s January Decision  

5.For the reasons set out in a Decision dated 30 January 2019 (“the Judge’s January Decision”), the Judge dismissed this application and leave to appeal was refused.

Summons before the Court of Appeal

6.Under Order 59 rule 2B(3) RHC, the applicants had 14 days in which to make a further application for leave to appeal to the Court of Appeal[1], ie by 13 February 2019.  However, the applicants failed to renew their application within that time limit. 

7.The applicants only filed a summons on 10 October 2019 in the Court of Appeal to appeal the Judge’s December Decision out of time.  It was supported by an affirmation which set out the grounds as follows:

“ (a) The [Judge] was wrong in law in holding that there was no state acquiescence or involvement.

(b) The [Judge] failed to provide detailed reason in support of his decision.” [sic]

8.8.  In the written submissions filed by the applicants on 8 November 2019, they set out some general propositions relating to the requirement of high standards of fairness for making a decision and the minimum standards of procedural fairness required in decision-making process. 

9.Having considered the summons and documents filed by the applicants, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Discussion 

10.By the time the applicants filed the summons before this Court for leave to appeal from the Judge’s December Decision, it was already more than 2.5 year from the date of the TCAB Decision.  The following matters shall be taken into account when this Court exercises the discretion on extension time to appeal: (1) the length of delay; (2) whether there is a reasonable excuse for the delay; (3) the merits of the intended appeal; and (4) any prejudice to the other party. 

11.In the present case, the applicants failed to provide any satisfactory reasons to this Court for the delay of this renewed application or the delay for bringing the application before the court below. The length of delay is very substantial and inexcusable. They had previously brought application for leave to appeal before the Judge within time. There is no reason why they did not do so in respect of the present application.  

12.In the circumstances, following well established practice leave to appeal should not be granted unless the court is satisfied that the appeal has a real prospect of success in the intended appeal, see Re Ansar Muhammad [2018] HKCA 227.

13.In our view, the intended appeal is without merits.  The applicants’ case was succinctly summarized by the Judge in the observations at [1] – [3] of the Form CALL-1 ([2018] HKCFI 2816).  According to the 1^st Applicant, her father had never before shown any violent tendency towards her.  The TCAB found that her father had not uttered to her any harsh words even after the birth of her son out of wedlock.  He had been looking after her son ever since.  The TCAB concluded that the applicants had failed to make out a case for non-refoulement protection under any of the applicable grounds. The Judge’s reasons in [13] – [18] of the Judge’s December Decision summarized the lack of merit in the applicants’ case:

“ 13.  These are however all just broad and vague assertions of the applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was their legal representation from their assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and in the absence of which I am unable to see any merits or basis in any of those grounds.

14.  The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given them insufficient time to prepare for their appeal.

15.  Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decisions should be well familiar to the applicants as they had earlier all being already made available to them when they still had legal representation, whilst their NCF was completed on their own instructions with legal assistance, and that at their oral hearing A1 never raised any issue or requested the adjudicator for further time to enable them to better prepare for their appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

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

17.  In the premises and having proceeded to consider 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 applicants’ claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and in the absence of any good reason I refuse to extend time and accordingly dismiss their application.”

14.The applicants’ intended grounds of appeal are bare assertions.  The Judge had considered the 1^st Applicant’s explanation about their late application at the hearing and analysed the merits of the applicants’ intended judicial review as set out in the Judge’s December Decision. On the facts of the present case, there is absolutely no basis whatsoever for the applicants to allege state acquiescence or involvement.

Order

15.For the above reasons, we would not extend time to the applicants. Accordingly, we dismiss the applicants’ summons to this court.

16.Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) RHC that the applicants may not request our determination to be reconsidered at an oral hearing.

Applicants acting in person