Re Darsini

CAMP 449/2021

[2022] HKCA 151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 449 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2929 OF 2018)

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Before:  Hon Cheung and Chow JJA in Court

Date of Decision:  26 January 2022

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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) :

1)  Renewed application for extension of time to appeal

1.On 20 December 2018, the applicant issued her application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 7 December 2018 dismissing her appeal against the decision of the Director of Immigration (‘the Director’)  dated 15 March 2018 rejecting her non-refoulement claim. 

2.In his decision of 12 November 2020, Deputy High Court Judge P Li refused to grant leave to the applicant for judicial review.

3.Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 2 December 2020 (late by six days)  before the Judge requesting an extension of time to appeal.  The Judge on 31 August 2021 rejected the applicant’s application.  

4.Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 11 October 2021 (late by over one month), the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

5.Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, 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.

2)  Factual background

6.Briefly stated, the applicant is an Indonesia national.  She was permitted to enter Hong Kong to work as a domestic helper from July 2016 to July 2018 or two weeks after termination of contract whichever is the earlier.  The applicant’s contract was prematurely terminated and she overstayed.  The applicant raised her non-refoulement claim in August 2017 on the ground that she feared she would be harmed or killed by her father because she refused to give him money.

3)  The Director’s Decision

7.The Director decided against the applicant’s non-refoulement claim on 15 March 2018.  The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board.  An oral hearing was conducted on 7 August 2018 for the Board’s assessment of all applicable grounds.  The Board dismissed the applicant’s appeal on 7 December 2018 and the Director’s Decision was confirmed. The Board held that the applicant was not telling the truth regarding the so-called threats from her father.  The Board found the applicant’s case vague and unbelievable both in her oral and written case.  While the applicant’s father might have borrowed money and the applicant’s personal and family background might be true, the threats from her father and the other claims were exaggerated and not accepted.  The Board further held that the dispute was a domestic dispute with no state involvement.  There are organizations in Indonesia which help women in distress.  Internal relocation is possible.  The applicant admitted to the Board that her purpose was trying to extend her stay in Hong Kong.

5)  Decisions of the Judge

9.In his decision dated 4 November 2020, the Judge held that the applicant’s case was rejected by the Board due to the major gaps, inconsistencies and contradictions in the applicant’s evidence.  

10.In his decision dated 19 August 2021, the Judge held that the applicant’s statement that she never received the decision in her mail was not accepted as the court record showed that the decision was sent to the applicant’s last known address without being returned undelivered.  Importantly, the applicant did not state any proper grounds of appeal nor identify any particular error of the Board.

6)  Legal principles

11.In considering whether to extend time for 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 extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

12.The applicant was late by six days, which is relatively minimal.  The applicant stated in her summons and affirmations that she did not get the judgment timely.  We agree with the Judge’s analysis that the judgment was properly sent and had not been returned undelivered.  We will focus on the merits of the intended appeal.

(2)  Prospect of the intended appeal

13.In the applicant’s summons and affirmation, the applicant simply stated that the High Court refused to extend time.  In her written submissions, the applicant simply recited factual matters without indicating any error of law or irregular procedure.

14.In our judgment, the applicant does not have any prospect of success in her intended appeal.

15.The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review and refused extension of time to appeal. 

16.Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

17.As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 11 October 2021.

The applicant, unrepresented, acting in person