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CAMP 119/2022
[2022] HKCA 1817
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 119 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 648 OF 2019)
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BETWEEN
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RINAWATI |
1st Applicant |
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RINAWATI KOMAL PREET KOUR |
2nd Applicant |
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and |
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TORTURE CLAIMS APPEAL
BOARD/
NON-REFOULMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
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Before: Hon Au and Chow JJA in Court
Date of Written Submissions: 6 October 2022
Date of Judgment: 15 December 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 20 April 2022, the Applicants took out a summons to apply for leave to appeal against the order of Deputy High Court Judge P Li (“the Judge”) dated 25 March 2022 refusing to grant them an extension of time to appeal against the Judge’s earlier order dated 26 January 2022 (“the Order”) refusing to grant leave to apply for judicial review.
2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 6 December 2018, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 23 March 2018 rejecting the Applicants’ non-refoulement claims.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
4. The 1st Applicant is a national of Indonesia. She last came to Hong Kong from Macau on 19 August 2014 to work as a foreign domestic helper. Her employment contract was terminated in 2015. She overstayed after her visa expired on 30 October 2015. She gave birth to her daughter, the 2nd Applicant (also of Indonesian nationality), on 19 December 2016. The 1st Applicant was arrested by the police on 21 December 2016. On 17 March 2017, the 1st Applicant raised a non-refoulement claim for herself and her daughter, alleging that if they returned to Indonesia, they would be harmed or killed by a loan shark for her failure to repay a loan. Details of the Applicants’ claims have been summarised by the Judge at §§1-8 of the CALL-1 Form ([2022] HKCFI 300).
5. By a Notice of Decision dated 23 March 2018, the Director rejected the Applicants’ non-refoulement claims on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).
6. The Applicants appealed the Director’s Decision to the Board. On 6 December 2018, the Board dismissed the Applicants’ appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§12-16 of the CALL-1 Form, as follows:
“[12] The adjudicator found that A1 was inconsistent in various aspects. A1 was not credible. The adjudicator made the following findings:
(a) A1 was unable to recall the amount of the loan raised in 2006. This was central to her claim. It was implausible that she was unable to recall.
(b) A1 told the adjudicator that there was no detail term in the loan agreement. It was not in writing. She only recalled a monthly interest rate of 20 %. There was no timetable for repayment. However, in her NCF, she stated that she promised to remit her salary after the first 7 months. There was a written agreement but she did not have a copy.
(c) A1 could not tell the adjudicator the name of the loan shark. The name of the friend who introduced her to the loan shark. She knew very little about the loan shark.
(d) A1 was unable to tell the adjudicator about the medical conditions of her parents. She only mentioned that her mother had a problem with her leg and almost could not walk. She did not know how long her father suffered from asthma. This was implausible as she claimed to have paid huge medical expenses for her parents.
(e) A1 told the adjudicator that when she first told the loan shark in 2007 she could not repay, the loan shark said he could wait. He did not set any time limit for repayment. The adjudicator found this unbelievable.
(f) A1 told the adjudicator that she changed her phone number many times to avoid the loan shark. She could not explain changing her number only in 2015 whereas the threat started in 2007. She could not explain why she need to change her number many times. The adjudicator opined that she concocted her evidence.
(g) She went back to Indonesia to visit her parents in 2014. They were both sick. However, she was unable to elaborate on their medical conditions. The adjudicator found this unacceptable given that she dared not return home even after her contract expired in the past.
[13] The adjudicator rejected A1’s evidence totally. There was no loan raised with a loan shark. There was no threat. The adjudicator concluded that both applicants were not in real risk of harm if refouled.
[14] The adjudicator pointed that A1 had not informed her parents about the birth of A2. In fact, she had not contacted her parents since 2015. The fear that her parents would reject A2 was pure speculation. However, the adjudicator accepted that both applicants would face some discrimination being a single mother and an illegitimate child. The adjudicator did not accept this would constitute any real risk of harm in the context of non-refoulement protection.
[15] After considering some COI, the adjudicator concluded that there were some social services available to assist single mothers, such as, the Women’s Empowerment and Child Protection Ministry and PEKKA[5]. These organizations provide financial support, psychological support, business and literacy training to single mothers.
[16] A1 told the adjudicator that she had regain contact with A2’s father who promised to support them financially. The adjudicator concluded that there was no real risk of harm for both applicants.”
7. On 7 March 2019, the 1st Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
THE JUDGE’S DECISION
8. At the hearing of the leave application on 8 November 2021, the Judge granted leave to the 1st Applicant to add her daughter as the 2nd Applicant in the application.
9. On 26 January 2022, the Judge refused to grant the Applicants leave to apply for judicial review for the following reasons:
“[21] The applicants were out of time in filing the leave application by one day. The applicants should have applied for extension of time. They did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted.
[22] In a case involving minors, it is important that the adjudicator considers the claim of the minors separately. The dismissal of the claim of a parent does not necessarily follow that the child’s claim would be dismissed. Further consideration of the personal situations of the child is always necessary.
[23] In the TCAB decision, the nationality of A2 was not in issue. The adjudicator found A1 not truthful. She rejected the evidence of A1. She concluded that there was no threat from any loan shark. I agree with this conclusion.
[24] A2 was born in Hong Kong. She had never met A1’s family. Given that A2’s claim was premised entirely on A1’s claim, she could not give any evidence in relation to the threats or the surrounding circumstances.
[25] The adjudicator had considered the possible discrimination against both applicants. She concluded that there were institutions which could provide integrated services to both applicants. She concluded that this possible discrimination would not amount to any risk of harm in the context of non-refoulement protection. I agree with her conclusion.
[26] In my view, there was no issue specific to A2 which had not been advanced or considered by the TCAB because of lack of legal representation. I shall treat the absence of legal representation for A2 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.
[27] As to the complaints by A1 in her letter dated 19/3/2021, I do not find any unfairness in the TCAB proceedings. A1 was given ample opportunities to answer questions. She was assisted by an interpreter. The adjudicator did not rely on any news reports. She actually found A1’s evidence implausible. I do not see any substance in A1’s complaint.
[28] There is no error of law and procedure in the TCAB decision. It is reasonable. There is no merit in the intended judicial review.”
10. On 25 March 2022, the Judge refused the Applicants’ application by summons dated 17 February 2022 for an extension of time to appeal against the Order ([2022] HKCFI 794).
THIS APPLICATION
11. By a summons taken out on 20 April 2022, the Applicants applied to the Court of Appeal for an extension of time to appeal against the Judge’s order of 25 March 2022. In her supporting affirmation filed on the same date, the 1st Applicant merely stated as follows:
“Affirmation for leave to appeal against the Order of High Court on 25-March-2022. I am disagree with the decision made by the Director of Immigration as well as the Torture Claim Appeal Board. I do not think my case has been determined fairly.”
12. In the 1st Applicant’s written submissions dated 6 October 2022, in addition to repeating that she disagreed with the decisions of the Director and the Board, she alleged that she did not know thoroughly how her case was determined, and complained about the lack of legal and language assistance, as well as “the discriminatory act of the authorities towards non-refoulement claimant merely on the basis of quick disposal of non-refoulement cases”.
DISCUSSION
13. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.
14. In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
15. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
16. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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 judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).
17. Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
18. In so far as the 1st Applicant’s application is concerned, she has failed to point to or substantiate any alleged error of the Judge in his decision of 26 January 2022, and has failed to raise any viable ground of appeal against the Order. The complaint about the lack of legal and language assistance, which was not raised in either the Form 86 or her supporting affirmation filed on 7 March 2019, is without merit. In a letter to the Court dated 19 March 2021, the 1st Applicant complained about not being provided with the bundle for the hearing of the appeal before the Board “earlier or with interpretation”, and alleged that she was confused in terms of what was happening. There was no complaint about the lack of legal assistance in that letter. As a matter of fact, she was represented by the Duty Lawyer Service in relation to the assessment of her non-refoulement claim by the Director. There could be no proper basis to complain about the lack of legal or language assistance at that stage. In relation to the appeal before the Board, she was assisted by an interpreter in the Indonesian language at the hearing. In any event, it is well established that the high standard of procedural fairness required to be observed in the assessment of a non-refoulement claim does not require that a non-refoulement claimant be given legal assistance at all stages of the assessment, or that language assistance be given at all times as required or desired by the non-refoulement claimant. The allegation of discrimination by the authorities driven by a desire to dispose of non-refoulement claims quickly has no substance either. It is plain from a reading of the detailed decisions of the Board and the Director, as well as the whole process concerning the assessment of her non-refoulement claim (including interviews and free legal representation in relation to the assessment by the Director and the appeal mechanism), that the 1st Applicant’s claim was thoroughly considered on the merits.
19. In relation to the 2nd Applicant’s application, the Court’s approach in considering a minor’s claim for non-refoulement protection is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33.
20. In the present case, the 2nd Applicant’s claim was premised fundamentally on the 1st Applicant’s claim. The Board, after considering the evidence in the case, rejected the 1st Applicant’s claim on the facts. There was no factual basis which could support the 2nd Applicant’s non-refoulement claim on any of the applicable grounds.
21. The Judge considered the 2nd Applicant’s application separately, and concluded that there was no issue specific to the 2nd Applicant which had not been advanced or considered by the Board because of the lack of legal representation for the 2nd Applicant. We agree with the Judge that there is no material which may give rise to a concern that there might be non‑refoulement grounds that related specifically only to the 2nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.
22. There is no prospect of success in the Applicants’ intended appeal.
DISPOSITION
23. The application for extension of time to appeal is refused, and the Applicants’ summons of 20 April 2022 is dismissed.
24. For the avoidance of doubt, the non-compliance with Order 80 rule 2 in these proceedings is treated as a mere irregularity without rendering the 2nd Applicant’s application a nullity.
(Thomas Au)
Justice of Appeal
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(Anderson Chow)
Justice of Appeal
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The Applicants, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] 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.
[5] Women-Headed Households Empowerment Program.
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