Case Detail

EKA MUGIASIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2023] HKCA 831-EN-2023-07-11

EKA MUGIASIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CAMP 381/2022, [2023] HKCA 831

On appeal from [2022] HKCFI 670

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)

________________________

BETWEEN
	Eka Mugiasih	Applicant
	and
	Torture Claims Appeal Board / Non refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Judgment:

11 July 2023

________________

J U D G M E N T

________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 24 February 2023 ([2023] HKCA 225). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 15 March 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 22 March 2023. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

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

4. She took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 16 August 2022 [1].

5. On 26 September 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 24 February 2023 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6. The applicant stated the following as her grounds in the Notice of Motion filed on 8 March 2023:

(1)  There is some error in the decision. Decision maker just relied on the country of origin information (“COI”) and facts which favour the rejection of her claim. Actual life is different from the situation mentioned in the COI;
(2)  The immigration officer and courts prefer to ignore the overwhelming evidence of violence towards minorities, searching for unrealistic silver lining;
(3)  The Decision betrays a biased and formulaic approach which is unlikely to fairly assess the danger of her life and was calculated to reject her claims;
(4)  As she does not have legal representation, she asks the court to provide this to her and to consider the real situation to save her life.

Analysis and disposition

7. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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. The applicant’s grounds were not submitted in the leave application before the Court of First Instance or in the previous application before the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

9. In any event, her grounds are just bare assertions without particulars or evidence in support. She has not identified any mistake in the Court of Appeal decision, or any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

10. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 8 March 2023.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 2384

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)

________________________

BETWEEN
	Eka Mugiasih	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Judgment:

24 February 2023

________________________

J U D G M E N T

________________________

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.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 670

[2] [2022] HKCFI 2384

[3] DOB: 10 October 1993

[4] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[5] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[7] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.