Re Nursanti

CAMP 254/2021

[2022] HKCA 211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 254 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1299 OF 2018)

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Before :  Hon Cheung and Yuen JJA in Court

Date of Decision :  10 February 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 6 July 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 29 June 2018 dismissing her appeal against the decision of the Director of Immigration (‘the Director’) dated 20 February 2017 rejecting her non-refoulement claim. The application was brought within time.

2.In his decision of 19 March 2021, Deputy High Court Judge K W Lung 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 4 May 2021 before the Judge requesting an extension of time to appeal. The Judge on 3 June 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 15 July 2021, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal. The application was late by over one month.

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 commenced work in Hong Kong as a foreign domestic helper in September 2013. She was allowed to stay in Hong Kong until September 2015. She was later allowed to stay further but eventually she overstayed. The applicant raised her non-refoulement claim in October 2016 based on her fear that she would be harmed or killed by a loan shark because she refused to marry him.

3)  The Director’s Decision

7.The Director decided against the applicant’s non-refoulement claim on 20 February 2017. 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 19 December 2017. The Board dismissed the applicant’s appeal on 29 June 2018 and the Director’s Decision was confirmed. The Board accepted the applicant’s claim that she was sexually assaulted by a loan shark. The Board held that it has been over seven years since the alleged sexual assault, and more than six years since the loan shark’s underling threatened the applicant. In two years while the applicant was in Indonesia, the loan shark did not contact her. The Board did not accept that the loan shark could locate the applicant through villagers with mystic powers. Persecution risk was not established as there was no evidence that the loan shark’s threats to kill were made because of any Convention reasons of race, religion or nationality. Internal relocation was possible, which diffuses the risk of the applicant returning to Indonesia and being threatened by the loan shark again. No genuine risk or substantial risk of torture was found if the applicant was to be refouled. The verbal threats towards the applicant by the loan shark’s underling were more of a coercive tactic than a real life threat. State protection was available.

5)  Decisions of the Judge

9.In his decision dated 19 March 2021, the Judge held the applicant’s affirmation in support of her application for leave for judicial review did not provide any specific reasons for her application. There was no error of law or procedural unfairness in the Board’s decision.

10.In his decision dated 3 June 2021, the Judge held that as the Form CALL-1 decision was sent to the applicant on 19 April 2021 it was deemed to have been served on 21 April 2021. Accordingly, the applicant was not late when she filed her application for extension to appeal and the application was not necessary. However, the Judge held that she would be late by the time she received his decision. The Judge then considered the merits of the appeal. He noted that the Board held that there was an absence of any systemic risk of harm towards the applicant. State protection was available and internal relocation was possible. There was no evidence that the Board erred in its decision.

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.As mentioned earlier, the applicant’s first application for extension of time was not necessary. Nonetheless, by the time she filed her summons for a renewed application for extension of time to appeal on 15 July 2021, the appeal deadline had expired and extension of time is required. In view of this background, we will focus on the merits of the appeal.

(2)  Prospect of the intended appeal

13.In the applicant’s summons, she asked the Court to save her life. In her affirmation, she attached a previous court decision. In her written submissions, she referred to the definition of asylum. She stated that the Board failed to make sufficient enquiry of her case. She reiterated that she wants her life to be saved. She quoted various case reference and statutory authority without showing how they relate to her case.

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 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 does not 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 15 July 2021.

The applicant, unrepresented, acting in person