Re Tutik Sofiatin

CAMP 21/2023, [2024] HKCA 91

On Appeal From [2022] HKCFI 1780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 21 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 300 OF 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) :

1) Renewed application for extension of time to appeal

1.On 5 May 2022, the applicant issued her application for leave for judicial review by Form 86 in HCAL 300/2022. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 1 March 2022 which dismissed her appeal against the decision of the Director of Immigration (‘the Director’) dated 10 December 2021 rejecting her non-refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 14 June 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 28 June 2022). Being out of time for over 1 month, the applicant took out an application on 11 August 2022 before the Judge requesting an extension of time to appeal. The Judge on 28 December 2022 rejected the applicant’s application for extension of time to appeal.

3.On 17 January 2023, 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 last entered Hong Kong in May 2019 as a foreign domestic helper but her contract was prematurely terminated and she overstayed. She raised her non-refoulement claim on 15 and 18 October 2021 alleging that she would be harmed or killed by her brother because the applicant refused to lend him money.

3) The Director’s Decisions

6.The Director decided against the applicant’s non-refoulement claim on 10 December 2021. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

7.The applicant appealed/petitioned against the Director’s decision to the Board. An oral hearing was conducted on 28 January 2022. The Board dismissed the applicant’s appeal/petition on 1 March 2022. The Board held that this was purely a case of family dispute without state involvement. It held that on two occasions where the applicant’s brother did harm the applicant, it was under a moment of impulse. On other occasions the applicant’s brother had done nothing to harm the applicant and had not threatened to harm her. The applicant failed to establish substantial ground for believing that she would be liable to be subjected to torture. Internal relocation was also available.

5) Decisions of the Judge

8.In his decision dated 14 June 2022, the Judge held that the applicant provided no ground for seeking relief nor did she request for oral hearing. There was no error of law or procedural unfairness.

9.In his decision dated 28 December 2022, the Judge held that some 6-week delay must be substantial and inordinate. The applicant at the hearing stated that she was only informed by her immigration officer when she was already out of time. The court record showed that the decision was sent to the applicant on the same day without being returned undelivered. It was held that importantly, the applicant failed to put forth any proper ground of appeal. The application for extension of time for appeal was refused.

6) Legal principles

10.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

11.Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

12.The Form CALL-1 decision was handed down on 14 June 2022. The deadline for the appeal was 28 June 2022. The applicant was over 1 month late when she filed her extension of time to appeal application on 11 August 2022. The applicant made a bare assertion on paper that she did not speak English nor understood court procedure. The court record showed that the decision was mailed to her on the same day as Form CALL-1.

(2) Prospect of the intended appeal

13.In the applicant’s summons, the applicant stated that she requested for oral hearing. In her affirmation, the applicant stated that she did not understand court procedure. In her written submission, the applicant made many bare assertions without explanation, including :

i) she did not know thoroughly how the case was determined so it was not easy for her to appeal the decision. However, the applicant apparently did not raise this as an issue before the Board and in her judicial review application;

ii) that she was never provided with legal and language assistance, which is factually incorrect as she had legal representation by duty lawyer and translator services when she completed her non-refoulement claim forms;

iii) she urges the authorities to take into account ‘real procedural unfair throughout the case’. This however, is broad and vague without any specificity;

iv) she has not been fully informed of her right and be given opportunity to be heard with such assistance. This is factually incorrect as she was heard before the Board; and

v) the time she applied for judicial review she was in detention centre in CIC immigration department and she was not aware she needed to change address in High Court. For this point, the applicant has already mentioned the same point before Deputy High Court Judge Bruno Chan at paragraph 6 of his decision dated 28 December 2022. It was contained in paragraph 3 of a document the applicant filed into court on 15 September 2022.

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

15.The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

16.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.

8) Disposition

17.As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 17 January 2023.

The applicant, unrepresented, acting in person