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

CAMP 2/2021

[2021] HKCA 987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1924 OF 2018)

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Before: Hon Kwan VP and G Lam JA in Court

Date of Written Submission: 10 March 2021

Date of Judgment: 14 July 2021

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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 31 July 2020, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim^[1].

2.On 23 September 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period, exclusive of the court’s summer vacation, to file her appeal ended on 14 September 2020.  The application was dismissed by Deputy High Court Judge C P Pang on 30 December 2020^[2].

3.On 4 January 2021, the applicant filed the present summons indicating that the High Court judge gave a wrong decision regarding her application for leave to apply for judicial review and stated in her supporting affirmation that she wants to seek leave to apply for judicial review against the High Court’s decision.  This application should be treated as a renewed application for extension of time to appeal against the judge's decision of 31 July 2020 (see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.The applicant is a national of Indonesia.  She is 40 years old.  She came to Hong Kong to work as a domestic helper on 3 September 2012.  Her employment contract was terminated prematurely and she has overstayed since 10 September 2013.  On 29 July 2013, she gave birth to her son, who has obtained permanent residency status.  She lodged her non‑refoulement claim on 18 March 2014 on the basis that she will be harmed by her family if she is refouled because of having a child out of wedlock.

The Director’s decision

5.By a Notice of Decision dated 7 April 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6]. 

The Board’s decision

6.The applicant appealed against the Director’s decision to the Board.  She attended the hearing before the Board on 8 May 2018.  The applicant told the Board that her family did not threaten to harm her but simply told her not to return with a child.  The Board considered there was no evidence that the applicant’s family has threatened to harm her or her son or that her family has any intention to do so.  There was also no evidence to show that anyone else in Indonesia would harm her or her son.  The Board also held it would be reasonable for her to relocate to other locations in Indonesia and police protection would be available to her in Indonesia in any event.  Therefore, the appeal was dismissed by the Board on 10 September 2018.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 13 September 2018 which was subsequently amended as an application to seek leave to apply for judicial review against the decision of the Board. She did not put forward any grounds for her intended challenge but simply stated in her supporting affirmation that she does not want to go back to Indonesia as her family does not accept her with her child and she does not have a place to stay with her child there.

The judge’s decision

8.DHCJ K W Lung considered the application on paper as the applicant did not request for an oral hearing.  The judge held that the applicant does not have any reasonable prospect of success in her proposed judicial review as there is nothing to show that the Board had committed any error in its finding of the facts or its application of the law to the applicant’s case.  Thus, the application was dismissed on 31 July 2020.

Grounds of intended appeal

9.In the applicant’s summons, she only stated that the judge’s decision was not correct without providing any particulars or elaboration.

10.The contentions stated in her written submissions may be summarized as follows:

(1)  The applicant fled to Hong Kong to save her life from her husband and his family.  They wanted to kill her as she did not pay all her income to them and they beat her many times and tried to kill her;

(2)  The police did not help her but gave support to her husband;

(3)  The Director and the Board refused her application as they did not find anything in her claim to be true.

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 31 July 2020.  The applicant took out a summons at the court below on 23 September 2020.  She was late by more than one week, excluding the court’s summer vacation during the period of August 2020.

13.The applicant explained to Deputy High Court Judge C P Pang at the hearing of her application for extension of time that she only learned about the order when someone claiming to be a staff of the High Court called her telling her about the order.  As a matter of fact, the court sent the decision to the applicant’s address by post in July 2020 which was later returned to the court by the post office as the address was incomplete.  It is noted that the address previously provided by the applicant to the court was stated as “Flat 2/F” while the address stated in her present application is “Flat F, 2/F”. Under these circumstances, the applicant’s explanation for the delay cannot be considered as justifiable as it is established that a litigant has the duty to give the court an accurate address to which correspondence or notice can come to his or her attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]). 

14.As the delay is inexcusable even though it is not substantial, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

15.In the present application, the applicant raised some grounds in her written submissions which had not been raised previously at the court below and were contrary to her own claim.  According to the applicant’s own case, she is single and gave birth to her son who was born out of wedlock but she submitted in writing that her husband wanted to kill her. 

16.Her case is self-contradicting and her submissions are not supported by evidence.  She also failed to provide any particulars or elaboration to demonstrate how the judge was wrong in dismissing her application.  She failed to show there is any prospect of success in the intended appeal.  We therefore refuse to grant leave to appeal out of time and dismiss the summons filed on 4 January 2021.

The Applicant, acting in person

[1] [2020] HKCFI 1754

[2] [2020] HKCFI 3124

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.