Re Rustini

CAMP 562/2021

[2022] HKCA 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 562 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1298 OF 2018)

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Before:  Hon Cheung and Au JJA in Court

Date of Decision:  6 May 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) :

I.  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 6 April 2017 rejecting her non-refoulement claim on BOR 2 ground.

2.Previously, the Board had on 23 February 2017 dismissed the applicant’s appeal against the decision of the Director dated 8 May 2015 rejecting her non-refoulement claim on BOR 3, persecution and torture risk grounds. 

3.In his decision of 19 April 2021, Deputy High Court Judge P. Li refused to grant leave to the applicant for judicial review. Whilst the applicant did not apply for leave for judicial review against the previous decision of the Board dated 23 February 2017, the legality of this previous decision was, nonetheless, also considered by the Judge.

4.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 1 June 2021 before the Judge requesting an extension of time to appeal.  The Judge on 11 November 2021 rejected the applicant’s application.   

5.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 December 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 about one month.

6.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.

II.  Factual background

7.Briefly stated, the applicant is an Indonesian national.  In October 2005, she first came to Hong Kong as a domestic helper.  She would routinely remit money back to her husband who was in debt.  In August 2013, her husband borrowed 25 million IDR from a loan shark again.  He threatened to kill her if she did not repay for him.  Later that month, she again came to Hong Kong for work.  She could not repay the debt for her husband.  She feared that her husband would kill her if she returned to Indonesia.  Her contract as a domestic helper was terminated on 8 January 2014 and she filed the non-refoulement claim in this case on 26 February 2014.

III.  The Director’s Decisions

8.The Director decided against the applicant’s non-refoulement claim on different grounds on 28 May 2015 and 6 April 2017.  The first decision covered BOR 3 (torture/inhuman treatment)  risk, as well as other statutory and convention rights against torture and persecution.  The second decision covered BOR 2 (right to life)  risk.

IV.  The Board’s Decisions

9.The applicant appealed against the Director’s decisions to the Board.  An oral hearing was conducted on 3 August 2016.  The Board dismissed the applicant’s appeals on 23 February 2017 and 29 June 2018 respectively, and the Director’s decisions were confirmed.  In sum, the Board held that there was no persecution or torture risk because the applicant was only assaulted by her husband and without any official or state involvement.  The applicant’s claim based on BOR 2 and 3 risks were rejected for similar reasons: there was no severe physical or mental suffering, and the applicant was not targeted by the government.

V.  Decision of the Judge

10.In his decision dated 19 April 2021, the Judge concluded that there was no identifiable error of law and procedure in relation to the Board’s decisions.  It was noted that language assistance was available to the applicant.  The Board’s reliance on country of origin information (‘COI’)  was also reasonable, as they were from reliable sources.  General criticism of those COI could not assist the applicant.

11.In his decision dated 11 November 2021, the Judge noted that the applicant was out of time for about one month when issuing her application for extension of time to appeal.  He held that such delay was significant, and did not accept the applicant’s explanation that she was not aware of the time limit for appeal because she did not know English. Further, focusing on the merits, the Judge held that the applicant did not put forward any valid grounds of appeal.

VI.  Legal principles

12.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.

VII.  Analysis

1)  Length of delay and reasons for the delay

13.The delay of about one month is significant.  Be that as it may, we will focus on the merits of the intended appeal.

2)  Prospect of the intended appeal

14.In the applicant’s affirmation, she simply stated that she disagreed with the various decisions made by the Director, the Board and the Court below.  In her written submissions, she further complained about the lack of language and legal assistance and repeating the complaints she made before the Judge.

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

16.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. 

17.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.

VIII.  Disposition

18.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 December 2021.

Applicant, unrepresented, acting in person