Re Sri-wahyuningsih

CAMP 397/2022, [2023] HKCA 905

On Appeal From [2022] HKCFI 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 397 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 465 OF 2019)

________________________

________________________

________________________

D E C I S I O N

________________________

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

1)  Renewed application for extension of time to appeal

1.On 19 February 2019, the applicant issued her application for leave for judicial review by Form 86 in HCAL 2160/2018, being out of time by over 11 months. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 12 December 2017 which dismissed his appeal against the decisions of the Director of Immigration (‘the Director’) dated 5 July 2016 and 16 December 2016 rejecting his non‑refoulement claim. Deputy High Court Judge K W Lung (‘the Judge’) refused to grant extension of time to the applicant for leave to apply for judicial review and dismissed the application on 21 January 2022.

2.Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 4 February 2022). Being out of time for four days, the applicant took out an application on 8 February 2022 before the Judge requesting an extension of time to appeal. The Judge on 10 March 2022 rejected the applicant’s application for extension of time to appeal.

3.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 (i.e. 17 March 2022). On 30 September 2022, being over six months late, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.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.

2)  Factual background

5.Briefly stated, the applicant is an Indonesia national. She first arrived in Hong Kong in November 2004 to work as a foreign domestic helper. Her permission to stay in Hong Kong expired on 31 October 2009. She overstayed in Hong Kong. In 2011 she was arrested for possession of dangerous drug and breaching her condition of stay. She was taken into custody and while in custody she gave birth to two daughters.

6.In December 2011 the applicant and her two daughters raised a torture claim. She was represented by Duty Lawyer. The torture claim was rejected on 28 February 2013. They did not appeal this decision.

7.On 16 June 2014, the applicant and her daughters raised their non‑refoulement claim alleging that she would be harmed or killed by money lenders and enemies of a Mr. Sarno whom she had married if she returned to Indonesia.

3)  The Director’s Decision

8.The Director decided against the applicant and her two daughters’ non‑refoulement claim on 5 July 2016. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), as well as other statutory and convention rights against persecution except torture (‘the Director’s Decision’).

9.The Director decided against the applicant and her daughters’ right to life claim under Article 2 of the Bill of Rights (‘BOR 2’) on 16 December 2016 (‘the Director’s Further Decision’).

4)  The Board’s Decision

10.The applicant appealed / petitioned against the Director’s Decision of 5 July 2016 to the Board. An oral hearing was conducted on 9 October 2017 but the applicant and her daughters whom she represented were absent. The Board dismissed the applicant’s appeal / petition and the Director’s Decision and the Director’s Further Decision were confirmed.

11.The Board did not consider the merits of the case. It essentially held that there were a number of questions that it had intended to ask the applicant who represented herself and her daughters, most of them being questions regarding her credibility and the veracity of her claim regarding her fear of returning to Indonesia. It held that as the applicant did not appear, the Board was denied the opportunity to better understand her situation. It was unable to assess whether it was the case that the applicant and her daughters were unable to return to Indonesia and it was unable to make any finding on the risk of harm. It held that the applicant’s petition was not proven. The petition was denied. The Director’s decisions were confirmed.

5)  Decisions of the Judge

12.The Judge dealt with the application for leave to apply for judicial review on paper. In his decision dated 21 January 2022, the Judge held that he noticed that the applicant in her application for non-refoulement before the Director and the Board had included her two daughters as the applicants for non-refoulement. However, in her Form 86 application before the Judge, for reasons unknown, the two daughters were not included. The application before the Judge was ‘about 14 months late’. The Judge found that the applicant provided no ground in support of her application for leave to apply for judicial review out of time. The Judge held that the Board was entitled to proceed under the law to consider the applicant and her daughters’ appeal / petition in their absence and that the Board was ‘entitled to draw adverse finding of evidence against her [the applicants]’. He was further of the view that it was apparent to the applicant that she had the duty to cooperate with the Board and her absence without legitimate reason would have adverse effect on her appeal, and that the high standards of fairness would not assist her if she did not cooperate with the Board. The Judge concluded there was no error of law or procedural irregularity detected by the Judge.

13.In his decision dated 10 March 2022, the Judge held that the applicant had provided no valid ground to challenge the Board’s decision. Nor could the applicant point out any error against the Judge. There was no realistic prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6)  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.

7)  Analysis

(1)  Length of delay and reasons for the delay

15.Under Order 53, rule 4 of the Rules of High Court, the applicant had three months from the Board’s decision to file a Form 86 to seek for leave for judicial review. The applicant was late in making such application by over 11 months. There was no good reason for the delay and she provided no grounds for her intended application.

16.The Form CALL-1 decision was handed down on 21 January 2022. The deadline for the appeal was 4 February 2022. The applicant was a few days late when she filed her extension of time to appeal application on 8 February 2022.

17.The present summons for a renewed application for extension of time to appeal was filed on 30 September 2022. It was over six months late. This is a substantial delay. She stated in her affirmation that it was unfair as the Judge did not hear her application.

(2)  Prospect of the intended appeal

18.In our judgment, despite the substantial delay in this case, the applicant does have a reasonable prospect of success in her intended appeal. The Board did not assess the merits of the applicant’s and her daughters’ claims. The Board indicated that it had questions for the applicant on a number of issues, including the claims that she and her children would be discriminated by reason of the children being born out of wedlock and raised as Christians. However, since she failed to testify before the Board and answer questions, she had denied the Board of the opportunity to better understand their situation and test the truthfulness of their claims. The Board held it could not make a finding that they would be at risk of harm as claimed, or determine whether the level of discrimination towards them would be such as to require non‑refoulement protection. On that basis, it dismissed the applicant’s and her daughters’ claims. This is a wrong approach. The Board (as well as the Director) is the primary decision maker in a non‑refoulement claim and the nature of the hearing before the Board is a rehearing. The Board ought to and could have made an assessment of the merits of the applicant’s claim and her daughters’ claim separately having regard to, amongst other things, the materials provided to the Director and in the Director’s decision, regardless of the applicant’s absence. But it did not do so. We have grave doubts that the Board could simply refuse the applicant’s and her daughters’ appeal / petition on account of their absence to answer questions and without more. It is reasonably arguable that for the intended judicial review the Board’s decision contains error of law and procedural irregularity. It is further reasonably arguable that the Judge’s reasons for his decision (see [12] above) cannot be supported upon a proper reading of the Board’s decision.

19.We would further observe that a better approach for the judge below when he noticed that the Form 86 had not included the applicant’s daughters as applicants is to seek clarification from the applicant either by a written inquiry or by holding a direction hearing. This Court had emphasised that the claim by the children should be carefully and separately considered. Bearing in mind that the applicant is acting in person, a proactive approach is needed.

8)  Disposition

20.As the intended appeal is reasonably arguable, we will grant extension of time to appeal to the applicant. The applicant is required to file a notice of appeal within 28 days from the date of this decision.

Applicant, unrepresented, acting in person