RE SUMIYATI NATASHA SALSABILA NADHIFA

CAMP 232/2023, [2026] HKCA 1222

On appeal from [2021] HKCFI 610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 232 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 618/2020)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ P Li (“the Judge”) dated 11 March 2021 (“the Leave Decision”)[1] refusing leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 26 September 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration dated 15 May 2019 which dismissed her non‑refoulement claim.

2.  The applicant was born in Hong Kong on 31 December 2017 and she is therefore a minor.  In the present proceedings, the Board rendered two separate decisions in respect of the (i) applicant’s appeal against the dismissal of her non-refoulment claim; and (ii) the applicant’s mother’s (“the Mother’s”) appeal against the dismissal of her non‑refoulment claim. 

3.  In the court below, the applicant’s and the Mother’s applications for leave to apply for judicial review were commenced in separate HCAL proceedings, which were thereafter heard together before the Judge.  

4.  The present renewed application for extension of time to appeal is brought by the applicant alone, and does not concern the Mother.

Background

5.  The applicant is a national of Indonesia.  Her non-refoulement claim was lodged by the Mother on her behalf.

6.  The background to this case, the applicant’s basis for her claim (which was dependent on that of the Mother) and the reasons given by the Board in its Decision have been set out therein and summarised by the Judge in the Leave Decision at [4]-[30], which will not be repeated.

7.  After considering the documents filed and the Mother’s oral submissions made at the hearing of the consolidated leave application, the Judge dismissed the applications of the Mother and the applicant for the reasons stated in the Leave Decision.

8.  By a decision dated 9 March 2023[2] (“the EoT Decision”), the Judge refused to extend time for the applicants to appeal against the Leave Decision.

The present application for extension of time to appeal

9.  According to the court’s record, a copy of the Leave Decision and a sealed copy of the Judge’s order was sent by post to the applicant at her last known address on 11 March 2021, which was not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days from the date of the Leave Decision.

11.  Subsequently, the applicant (as well as the Mother) made an application in the court below for an extension of time to appeal against the Leave Decision, which was dismissed by the Judge for the reasons stated in the EoT Decision.

12.  By a Summons filed on 19 June 2023, the applicant (but not the Mother) renewed her application for an extension of time to appeal before this court.

13.  In the Summons and the supporting affirmation (filed by the Mother on the applicant’s behalf), the applicant/Mother stated that she disagreed with “the decision maker authorities to determined my case”.

14.  On 6 October 2023, the Mother (presumably on behalf of the applicant) lodged written submission, wherein she contended inter alia that the Board did not determine the case fairly, that the applicantwas never provided with legal and language assistance, and that the authorities have been “discriminatory” towards her.

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

Discussion

16.  The Leave Decision was sent to the last known address of the applicant, but was not returned undelivered.  The inference to be drawn is that the applicant has had notice and knowledge of the Judge’s order and the contents of the Leave Decision in the period within which she was permitted to lodge an appeal.  In any event, it was incumbent upon the applicant (whether by her Mother acting on her behalf or otherwise) to notify the court of a change of address, if any, as soon as possible.  The consequences of failure to do so must lie with her. 

17.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal.

18.  There is a delay by the applicant (of around 3 months) in renewing the application for an extension of time to appeal before this court.  The delay is not insignificant and the present application is liable to be dismissed on this basis alone.  However, we havenonetheless proceeded to consider the merits of the intended appeal.  

19.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

20.  It is necessary for this court to consider the position of the 2^nd applicant separately, as she is a minor and has not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A).  See Fabio Arlyn Timogan & Ors. v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971. 

21.  We note that in breach of the directions by the Registrar of Civil appeals, no steps have been taken to comply with the requirements under Order 80, rule 2.  Notwithstanding this, the present application was referred by the Registrar to this court for determination.  

22.  The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh & Ors. [2021] HKCA 53 which established that:

(a)     non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;

(b)     even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(c)     ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

23.  There is nothing to suggest that the merits of the applicant’s claim (or any underlying matter that may support minor-specific non‑refoulement grounds) had not been adequately explored before the Judge due to the lack of legal representation.

24.  For the following reasons, we are of the view, after subjecting the Board’s Decision to anxious scrutiny, that the applicant’s non‑refoulement claim hadbeen adequately and separately considered by the Board.

25.  First, as their non-refoulement claims were lodged by the applicant and the Mother under two separate claims, the ensuing separate decisions by the Board dealt with their appeals from the decisions of the Director of Immigration separately.  Thus, the Board’s Decision and the discussion therein necessarily focused on the merits of the applicant’s appeal (notwithstanding that the factual basis of the applicant’s claim hinged on that of the Mother’s).

26.  The Mother’s main concern upon refoulement was based on a perceived threat of harm by the Mother’s ex-husband and father, who reside in Indonesia.  The applicant was born out of wedlock with another man in Hong Kong. 

27.  It may be seen in the Board’s Decision (at [33]-[43]) that after considering and assessing the Mother’s evidence regarding her perceived risks of harm (which are inextricably linked to the bases of the applicant’s claim), the Board specifically considered the applicant’s position and any associated risks by reason of her having been born out of wedlock and as the result of an extra-marital affair (Board’s Decision, [44]).  The Board found, as a matter of fact, that the Mother’s father (the applicant’s grandfather) was not a devout Muslim and thus would not pose harm to the applicant notwithstanding her status (Board’s Decision, [44]).

28.  As to the perceived threats by the Mother’s ex-husband against the applicant, the Board found that the Mother’s ex-husband was in a relationship with another woman in Indonesia, and rejected the Mother’s contentions that her ex-husband would cause harm to the applicant (Board’s Decision, [42]). 

29.  The Board therefore concluded that the applicant would not face a real risk of harm from either the Mother’s ex-husband or father should she be refouled (Board’s Decision, [48]).  In any event, the Board examined in detail the capability of the Mother in caring for the applicant in Indonesia at an internally relocated city, such as Brongolo, Jakarta or Surabaya, and concluded that the Mother was well equipped, by reason of her work experience and/or education, to adequately care for the applicant upon refoulement (Board’s Decision, [50]-[57]). 

30.  The aforementioned were factual findings and conclusions open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [22]-[42].  We see no basis to interfere.

31.  The applicant has accordingly failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  She has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision with regards to her appeal/claim, or how such Decision could be said to be Wednesbury unreasonable.

32.  The applicant’s (or the Mother’s) complaint of prejudice by reason of a lack of proficiency in English is unfounded and of little or no merit.  We note that the applicant was able to, presumably with assistance from the Mother or others, lodge with the court applications and submissions written in comprehensible English.

33.  We are equally unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.  Notwithstanding that the applicant is a minor, as mentioned above, we do not consider there to be any indication that the merits of the applicant’s claim had not been adequately explored before the Judge due to the lack of legal representation.

34.  For the reasons stated above, we do not see any prospect of success in the applicant’s intended appeal, and this court will not grant an extension of time for a hopeless appeal.  

35.  The Summons filed on 19 June 2023 is accordingly dismissed.