Re Rusyatiningsih Nimun

CAMP 211/2022, [2023] HKCA 532

On Appeal From [2020] HKCFI 2395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 211 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 950 OF 2018)

________________________

________________________

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving the Decision of the Court)  :

I. Renewed application for extension of time to appeal

1.On 28 May 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 March 2018 which dismissed her appeal against the decision of the Director of Immigration (the ‘Director’)  dated 15 February 2017 rejecting her claim for non - refoulement protection.

2.In his decision of 23 September 2020 (the ‘Decision’), Deputy High Court Judge Bruno Chan refused to grant leave to the applicant for judicial review.

3.Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision. Being out of time, the applicant took out an application on 7 December 2020 before the Judge requesting an extension of time to appeal.  The Judge on 1 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 24 June 2022 (late for over one year), the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.Under Order 59, rule 14A(1)  of the Rules of the High Court, 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.  Background

6.The applicant is a national of Indonesia.  She entered Hong Kong on 17 February 2005 with permission to work as a foreign domestic helper.  She overstayed after the premature termination of her employment contract in 2006.  She was arrested for overstaying on 20 November 2013, for which she was subsequently convicted and sentenced to imprisonment.  Upon her discharge from prison, she raised a non - refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her parents’ creditor for refusing to marry him as repayment of their loans.

7.The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of the Decision.

III.  The Director’s Decision

8.The Director’s Decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as her other statutory and convention rights against torture and persecution (the ‘Director’s Decision’).

IV.  The Board’s Decision

9.After a hearing held on 25 January 2018, the Board dismissed the applicant’s appeal.  The Board found that the applicant’s claim to be unsubstantiated and unbelievable.  In any event, the Board was satisfied that, on the objective country of origin information, 1) state/police protection would be available to the applicant upon her return to Indonesia, and 2) internal relocation to other parts of Indonesia was possible and not unreasonable.

V.  Decision of the Judge

10.    The applicant filed a Form 86 and a supporting affirmation on 28 May 2018.  She did not put forward any ground for seeking relief in her Form 86.  In her affirmation, she merely stated that the Board’s Decision was unfair and unreasonable without any particulars or elaboration.

11.The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

12.Even though the applicant did not identify any error of law, irrationality or procedural unfairness in the proceedings before the Board or its decision, the Judge considered the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny.  The Judge did not find any error of law or procedural unfairness, nor any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises, the Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and accordingly refused the leave application.

13.In his decision of 1 June 2021, the Judge considered the delay of two months to be substantial.  The Judge was not satisfied that the applicant had provided any good reason for the serious delay.  More importantly, the Judge found there was no prospect of success for the intended appeal.  The Judge therefore refused the applicant’s application for extension of time to appeal.

VI.  Legal principles

14.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

15.The applicant was late for two months when she filed the application for extension of time to appeal before the Judge. Her renewed application to this Court was again late by over one year.  The applicant did not give any explanation whatsoever for the inordinate delay of over one year in taking out the present application.  In the summons and affirmation filed on 24 June 2022, the applicant only claimed that she did not receive the Decision within 14 days due to ‘the document being lost in Post’ and that she could only get the documents ‘after searching the court file’. Not only are these bare assertions completely unsubstantiated by any documentary evidence, they are also inconsistent with the purported explanations which she gave the Judge at the hearing of her application for extension of time below.

16.In our view, the applicant has failed to provide any satisfactory explanation for her inordinate delay.  More importantly, for the reasons set out below, we agree with the Judge that the intended appeal has no prospect of success.

2)  Prospect of the intended appeal

17.The applicant did not provide any proposed grounds of appeal.  In her written submissions dated 8 July 2022, she recited case authorities which are frequently used in general non - - refoulement claims and statutory reference without explaining how those principles were related to her case.

18.On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

19.Furthermore, 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.

20.In the present case, the applicant has not identified any proper grounds of appeal or errors committed by the Judge.  The intended appeal is completely devoid of merits.

VIII.  Disposition

21.As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 24 June 2022.

Applicant, unrepresented, acting in person