Eka Mugiasih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 381/2022

[2023] HKCA 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 381 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2495 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 15 March 2022, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.On 16 August 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3.On 26 September 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge.

4.The applicant is a national of Indonesia. She is 29 years old[3]. The applicant entered Hong Kong to be employed as a foreign domestic helper on 12 March 2015 but was prematurely terminated on 27 June 2015. She did not return to Indonesia and on 13 September 2015, she lodged a non-refoulement claim on the basis that she would be harmed or killed by her father and/or her father’s creditor.

5.By a Notice of Decision dated 11 September 2017, the Director rejected the applicant’s claims on all then applicable grounds including torture risk[4], BOR 3 risk[5], BOR 2 risk[6] and persecution risk[7].

6.The applicant appealed against the Director’s decision and appeared before the Board for an oral hearing on 18 July 2018. The Board essentially did not accept the applicant’s claim that she was at risk of harm from her alleged creditor. There were serious inconsistencies in the applicant’s evidence, such as being unable to recall the identity of her creditor or details as to her father’s arrest by the police. The applicant also raised new claim at the hearing which further undermined her case. Therefore, the Board rejected the applicant’s claim on 8 October 2018.

The judge’s decision

7.On 7 November 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. She did not provide any grounds of appeal in her application and her affirmation in support, and simply annexed the decision of the Board.

8.Upon reviewing the Board’s decision with rigorous examination and anxious scrutiny, the judge did not find any error of law or procedural unfairness of the Board. The judge held that the findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational. Therefore, the judge concluded there is no prospect of success in the intended judicial review and refused the leave application on 15 March 2022.

Grounds of appeal

9.The applicant did not provide any grounds of appeal in her summons or her affirmation in support, and merely stated that she did not wish to return to Indonesia.

10.The applicant has not submitted any written submissions within time or at all. Therefore, the applicant is deemed to have abandoned her right to rely on written submissions.

Analysis and disposition

11.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 15 March 2022. The applicant took out a summons for extension of time to appeal at the court below on 12 July 2022. The applicant was late for nearly 3 months. This is substantial and the applicant has failed to provide any explanation for her delay.

13.As the applicant’s delay is inexcusable, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.The applicant has not provided any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave to bring judicial review. In the circumstances, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 15 March 2022 and dismiss the summons filed on 26 September 2022.

The Applicant, acting in person