RE SUYATI

CAMP 76/2019

[2019] HKCA 1447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 76 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 211 of 2018)

________________________

________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  On 5 September 2019, this Court (Cheung and Chu JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Josiah Lam given on 24 September 2018 refusing her leave to apply for judicial review.     

2.  On 7 November 2019, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the directions given by the Registrar of Civil Appeals, the applicant has not put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion and affirmation, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Under section 24(6), this Court may extend the time for making the application.

6.  In the present case, the applicant’s notice of motion was more than one month late.  The delay is not insubstantial.  The applicant has given no explanation for the delay.    

7.  As to the merits of the intended appeal, under section 22(1)(b) of the Court of Final Appeal Ordinance, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

8.  In the notice of motion, the applicant stated that: (1) it was not true that there was no substance in her grounds of application, (2) she did not complain about the poor performance of the duty lawyer for fear of being picked out by the adjudicator for “misappropriating”, and (3) she did not have enough time to address the bundle.  The applicant further stated in her affirmation that: (1) the Court was wrong to hold that there was no state acquiescence or involvement, and (2) the Court failed to find out the details of the current situation in Indonesia.

9.  The grounds advanced in the notice of motion and the affirmation do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, they relate only to the circumstances of the applicant and her claim, and do not involve any question of great general or public importance, as required by section 22(1)(b). Secondly, we had pointed out in [14] of our judgment that state acquiescence or involvement was not raised before the Judge and there was no mention of this in the Judge’s reasons.  There is therefore no basis for the argument that the Judge erred in finding there was no state acquiescence or involvement. Thirdly, the matters put forward in the notice of motion and the issue about country of origin condition were also not raised in the Form 86 or supporting affirmation or in the application for leave to appeal out of time.  It is not open to the applicant to raise these new points in the application for leave to appeal.  They are in any event general assertions wholly lacking in particulars.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  In the circumstances, the intended application for leave to appeal has no prospect of success.  It would be futile to extend the time for making the application.  Accordingly, we refuse to extend the time for the applicant to apply for leave to appeal, and dismiss the Notice of Motion.  

The applicant, unrepresented, acted in person.

CAMP 76/2019

[2019] HKCA 983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 76 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 211 of 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 24 September 2018 refusing her leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by Deputy High Court Judge Bruno Chan (“DHCJ Chan”) on 26 March 2019.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of her application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 19 January 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 25 April 2017 rejecting her non-refoulement claim.

5.  The applicant’s claim was set out in detail in the decisions of the Director and the Board, and was summarized by the Judge at [1] to [10] of the Form CALL-1 dated 24 September 2018, [2018] HKCFI 2123. 

6.  Briefly stated, the applicant is an Indonesian national.  She entered Hong Kong in December 2003 and was given permission to remain as a domestic helper.  After her employment contract was terminated in August 2005, she overstayed.  In July 2014, she surrendered to the Immigration Department and raised a non-refoulement claim based on her fear of being harmed or killed by her former employer who was a gang leader.

7.  By his decision, the Director rejected the applicant’s claim on all applicable grounds, namely, torture risk[1], BOR 3 risk[2], BOR 2 risk[3] and persecution risk[4].

8.  The applicant’s appeal to the Board was heard on 9 November 2017.  By its decision, the Board dismissed the appeal.  In gist, the Board did not find the applicant’s case credible and did not accept her claim.  The Board concluded that the applicant failed to make out a case under any of the applicable grounds.

9.  On 12 February 2018, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  At her request, an oral hearing was held on 27 June 2018.  By the CALL-1 From, the Judge refused to grant her leave to apply for judicial review. 

10.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 8 October 2018. On 26 October 2018, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The summons was heard on 20 February 2019 before DHCJ Chan.  By a decision handed down on 26 March 2019, DHCJ Chan dismissed the application.  On 6 May 2019, the applicant filed a summons and an affirmation in this Court to renew her application for leave to appeal out of time.

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, 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: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

12.  The applicant was 18 days late when she filed the summons in the lower court for leave to appeal out of time.  DHCJ Chan considered the delay was not substantial or excessive, and also accepted the explanation given by the applicant for the delay.  He, however, dismissed the application because the applicant had not given any proposed grounds for her intended appeal.  

13.  In the present application, the applicant set out two grounds of appeal in the supporting affirmation.  They are: (1) DHCJ Chan was wrong in law in holding there was no sate acquiescence or involvement; and (2) DHCJ Chan failed to provide detailed reason for his decision.

14.  The two grounds are clearly unarguable.  In the first place, the decision that the applicant seeks leave to appeal out of time is the decision of the Judge dated 24 September 2018 which refused to grant leave to apply for judicial review.  The decision of DHCJ Chan dated 26 March 2019 only relates to the application for leave to appeal out of time.  Secondly, state acquiescence or involvement was not raised in the applicant’s Form 86 or supporting affirmation.  The Judge had not referred to this in his reasons refusing leave to apply for judicial review.  Thirdly, in light of the full reasons provided by the Judge and the reasons given by DHCJ Chan for his decision, the complaint that there was a failure to give detailed reasons simply has no merit.  

15.  In her written submission, the applicant advanced two arguments which are unrelated to the grounds of appeal set out in the affirmation.  The first is that high standards of fairness are required considering that the applicant’s life is in jeopardy, her fundamental right not to be subjected to torture is at stake and the decision has the effect of finally disposing of the applicant’s claim rendering her liable to be removed.  Secondly, it was argued that at common law, minimum standards of procedural fairness are required in decision making and decision maker is under a duty to act fairly.

16.  The applicant’s written submission only contains general legal propositions.  It fails to show how they relate to the applicant’s case.  While it complains that the Board failed to scrutinize the Director’s decision and ought to have considered matters, such as the country of origin information, no particulars are given.  They do not amount to viable grounds of appeal. 

17.  Given that the intended appeal is unarguable, it would be futile to give leave to appeal out of time. Accordingly, we dismiss the applicant’s summons filed on 6 May 2019.

18.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing. 

The applicant, unrepresented, acted in person.