Re Muji Royatin Bt Rohmat Sapadi

CAMP 174/2021

[2022] HKCA 734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 174 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1653 OF 2018)

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Before:  Hon Yuen and Au JJA in Court

Date of Written Submissions:  23 June 2021

Date of Judgment:  27 May 2022

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J U D G M E N T

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

1.On 26 June 2020, Campbell-Moffat J (“the Judge”)  refused to grant leave to the applicant for judicial review concerning her non-refoulement claim (“the JR Decision”)  and dismissed her leave application. Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 17 September 2020 for extension of time to appeal against the JR Decision.  The summons was heard and dismissed by the Judge on 3 May 2021 (“the Extension Decision”).

3.On 18 May 2021, the applicant filed her summons in CAMP 174/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.In compliance with the directions made by the Registrar of Civil Appeals on 17 June 2021, the applicant lodged her written submissions on 23 June 2021.

5.Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.The applicant is an Indonesian national.  She entered Hong Kong as a foreign domestic helper on 30 June 2014.  Her employment contract was prematurely terminated on 7 September 2014 but she did not leave Hong Kong upon the expiry of her visa.  She lodged a non-refoulement claim on 28 January 2015 alleging that she was duped into living with a man named Salamun (“S”), and S persuaded her to work in Hong Kong as a foreign domestic helper and promised to marry her.  The applicant was subsequently approached by a pregnant woman who claimed to be S’s wife (“the Wife”)  who threatened to kill her.  In fear of the Wife, she fled to Hong Kong in late June 2014 and has not returned to Indonesia since.  The factual background of this case was succinctly summarised by the Judge at [4] of the JR Decision ([2020] HKCFI 332).

7.By the Notice of Decision dated 24 January 2018, the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 24 April 2018 and by its decision dated 3 August 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [26] to [35], the Board found that the applicant’s evidence was vague, internally inconsistent and self-contradictory.  She appeared to know nothing of note about S even though she claimed she had lived with him (or his family)  for several months.  Her account as to how and when she met S, the development of their relationship, and the alleged threats from the Wife was lacking in details, incoherent and contradicted by her previous account to the Director.  The Board found that her claim was simply an invention and rejected her non-refoulement claim on all applicable grounds.

Application for leave to start judicial review

9.On 16 August 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In the Form 86, the applicant named “USM” as the proposed respondent and quoted decisions of the Director and the Board.  In her supporting affirmation, she attached the Board’s decision.  The Judge treated the intended challenge as being against the decision of the Board as the Respondent and the Director as an Interested Party.  The applicant did not state any ground for relief.

The JR Decision

10.The applicant did not request an oral hearing and the application was disposed of on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant leave to the applicant to apply for judicial review for reasons set out in [10] - [11] of the JR Decision:

“10.  There were no grounds of review.  The applicant has not complained of any procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007)  10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

11.  Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully including the account given to the Director as well as the Adjudicator as there were plainly discrepancies which went to the root of the Adjudicator’s decision.  It was open to him to assess the veracity of her case and to conclude that it had no basis in truth.  In so finding, it was open to the Adjudicator to take the view that the applicant could not establish the burden placed upon her.  I have not found any error of law or procedure in the manner in which he carried out his role.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately, including highlighting those issues where her claim fell down and providing her with an opportunity to fortify it.  She could not do so.  There is no criticism of his determination on the facts, which was open to him and eminently reasonable.”

Application for extension of time to appeal the JR Decision

11.As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 17 September 2020 for an extension of time to appeal.  That was heard by the Judge on 3 May 2021.  It would appear from the Judge’s Extension Decision that at the hearing, the applicant informed the Judge that she had given birth to a son on 27 June 2020 by a Pakistani national, and that she has applied to join the child to her claim as the child would be discriminated against if he were refouled to Indonesia.  However, no such application can be found in the file in these proceedings.  If and when a non-refoulement application is made on behalf of the child, that will be given separate consideration.  Hence, this court will only deal with the Summons.

Discussion

12.In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3) the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).  As for (1), the applicant was late by about 2 months between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was substantial.

13.As for (2), the reasons for the delay, the applicant explained to the Judge that she did not receive the JR Decision.  Upon the Judge’s enquiry, she appeared to say she used her friend’s address because her own address had no post box, but she did not explain why her friend did not pass the document to her.  She further claimed that she only learnt of the refusal of leave from the Immigration Department.  The Judge found that it was the duty of the applicant as a litigant to give the court an address that could reach her in a timely manner and she had to shoulder the consequence of failing to do so.  We agree with the Judge’s conclusion on this issue.

14.The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision.

15.In her summons and supporting affirmation filed with this Court, she explained that she was late “due to lack of knowledge and insufficient sources”.  In her written submissions, she advanced the following grounds:

(1)  Many aspects of her case were ignored and all the decisions were not transparent.  The actual situation of her country is different from what the decision-makers might think.

(2)  It is dangerous for her to return to her home country as her enemies are waiting for her.

(3)  The police and law authorities are corrupt and assistance would only be rendered to those who are powerful and rich.

(4)  She urged the court to help her stay in Hong Kong until her problem is solved.

16.It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility as her evidence was vague, inconsistent and self-contradictory, and her case was rejected in its entirety.  On that evidence it was open to the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  We do not see any in this case.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision. 

17.As the intended appeal is unarguable, it would be futile to extend time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 18 May 2021.

The applicant, unrepresented, acting in person