Rofi’atul Makiah v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CAMP 431/2021

[2022] HKCA 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 431 OF 2021

(ON APPEAL FROM HCAL NO 3570 OF 2019)

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BETWEEN

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Before:  Hon Au and Chow JJA in Court

Date of Written Submissions:  19 October 2021

Date of Judgment:  1 March 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.By a summons dated 5 October 2021, the Applicant applied to this Court for “leave to appeal” out of time against the decision of Deputy High Court K W Lung (“the Judge”)  on 23 April 2021 refusing leave to the Applicant to apply for judicial review. On 19 July 2021, the Judge refused to grant the Applicant an extension of time to appeal.

2.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.The Applicant is a national of Indonesia.  She came to Hong Kong as a foreign domestic helper and was arrested for theft on 24 October 2013.  On the same day, her employment contract was terminated.  Subsequently, she was convicted of that offence and sentenced to one month’s imprisonment.  After discharge from prison, she lodged a non-refoulement claim with the Immigration Department.  The Applicant claimed that, if refouled, she would be harmed or killed by her creditors because she was unable to pay off her debt.  Details of the Applicant’s claim have been summarised by the Judge at §§5-6 of the CALL-1 Form ([2021] HKCFI 1086).

4.By a Notice of Decision dated 6 January 2015, the Director of Immigration (“the Director”)  rejected the Applicant’s non-refoulement claim on the following grounds: risk of torture[1], BOR 3 risk[2], and persecution risk[3] (“the Director’s First Decision”).

5.The Applicant appealed the Director’s First Decision to the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”).  On 27 July 2015, the Board rejected the Applicant’s appeal and confirmed the Director’s First Decision (“the Board’s First Decision”).  The Board found that the Applicant was unable to show that, if refouled, she would face a real risk of harm of sufficient seriousness to amount to torture at the hands of either of the debt collectors or that any of the state agents were involved in the debt collection (§56).  The Board concluded that the Applicant’s claim for non-refoulement protection failed.

6.On 17 August 2015, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s First Decision.  In a judgment dated 3 March 2016, the Court found that the Applicant failed to demonstrate that any of her intended grounds of review was reasonably arguable and dismissed her application (see RM v Gerard Paul Muttrie, Esq, HCAL 166/2015).

7.By a Notice of Further Decision dated 29 May 2017, the Director rejected the Applicant’s non-refoulement claim on BOR 2 risk[4],  (“the Director’s Second Decision”).

8.The Applicant appealed the Director’s Second Decision to the Board.  The Board found no new facts in support of the Applicant’s appeal, concluded that she was unable to make out her claim on BOR 2 risk, and dismissed her appeal and affirmed the Director’s Second Decision on 29 November 2019 (“the Board’s Second Decision”).

THE JUDGE’S DECISION

9.The Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Second Decision.

10.On 23 April 2021, the Judge refused to grant leave to the Applicant to apply for judicial review, taking into consideration the facts found in HCAL 166 of 2015.  At §§18-20 of Form CALL-1, the Judge stated as follows:

“18. The Board had found that she was not having real chance of harm sufficiently serious to amount to torture at the hands of either of the debt collectors or that any of the state agents were involved in the debt collection, which is the fact found by the Board and it had given sufficient reasons for its findings.

19. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

THE JUDGE’S EXTENSION DECISION

11.Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed or served by the Applicant within the 14-day period.

12.The Applicant filed a summons dated 10 June 2021 applying for an extension of time to appeal.  She said that she received the court’s letter late and she should be given an opportunity to present her case.

13.The Judge focused on the prospect of success of her intended appeal (see [2021] HKCFI 2005 at §5).  The Judge found that the Applicant had not been able to say in what respect the Board had erred in the Board’s Second Decision, and her grounds in support of the application were not valid grounds to show that she had any reasonable chance of success in her intended appeal.

14.Accordingly, on 19 July 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed her application.

THIS APPLICATION

15.By a summons taken out on 5 October 2021, the Applicant applied to this Court for “leave to appeal” out of time against the decision of the Judge dated 23 April 2021.  In her summons and supporting affirmation filed 5 October 2021, the Applicant stated that she missed the deadline to appeal because the document was lost in the post.

16.In her 4-page written submissions filed 19 October 2021, the Applicant makes some generic submissions on the general principles of law relating to non-refoulement claims.

DISCUSSION

17.Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

18.In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

19.The prospect of success of the intended appeal is important: the court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

20.The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

21.We consider the delay of over a month to be substantial and the Applicant has not provided any good explanation for the delay.  As regards the chances of the appeal, the Applicant has only put forth generic submissions of law in her written submissions but has not provided any particulars of, or shown, any errors in the Judge’s decision to refuse to grant leave to apply for judicial review, or raised any viable grounds of appeal.

22.There is no reasonable prospect of success in the Applicant’s intended appeal.

DISPOSITION

23.The application for extension of time to appeal is refused, and the Applicant’s summons of 5 October 2021 is dismissed.

The Applicant, acting in person