RE SULEKHAH AND ANOTHER

CAMP 95/2021

[2022] HKCA 1480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 95 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 466 OF 2018)

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J U D G M E N T

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

1.  On 27 July 2020, DHCJ Bruno Chan (“The Judge”)  refused an extension of time for, and dismissed, the applications of the 1^st and 2^nd applicants (collectively called “the Applicants”)  for leave to apply for judicial review concerning their non-refoulement claims (“the JR Decision”).

2.  The Applicants did not lodge an appeal within 14 days.  They filed a summons in the Court of First Instance on 9 October 2020 for extension of time to appeal.  That summons was dismissed by the Judge in his decision of 18 March 2021 (“the Leave Decision’). 

3.  On 29 March 2021, the Applicants filed a summons in CAMP 95/2021 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  The 2^nd Applicant (“A2”)’s application for legal aid was refused on 12 August 2021.  Pursuant to the directions of the Registrar of Civil Appeals made on 18 August 2021, the Applicants should lodge their written submissions on or before 1 September 2021.  They failed to do so.  It was further directed that in the event the Applicants failed to lodge their written submissions, they shall be deemed to have abandoned their rights to rely on written submissions, and the matter will be referred to the Court of Appeal for determination based on the available materials. 

5.   Under Order 59 r.14A(1)  Rules of High Court (Cap 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without an oral hearing.  

Background

6.  The 1^st Applicant (“A1”)  is a national of Indonesia.  She was married to a man in Indonesia (“the husband”).  In 2013, she came to Hong Kong to work as a foreign domestic helper.  She formed a relationship with a former boyfriend from Indonesia, and gave birth to a son in July 2014 (“the 1^st illegitimate child”). After that relationship broke up, she returned to Indonesia to place the 1^st illegitimate child in her mother’s care.  She alleged that when her husband found out about the child, he and his brother assaulted her.   

7.  The applicant then came to Hong Kong again on 4 April 2015 to work as a foreign domestic helper.  She had an affair with another man, her current boyfriend, and gave birth to A2 in March 2016.  Her employment contract was prematurely terminated on 10 May 2016.  However, she did not depart and instead overstayed.  She then surrendered to the Immigration Department and raised a non-refoulement claim on 23 November 2016 alleging that if refouled, she would be harmed or even killed by her husband over her extramarital affairs in Hong Kong.  On 28 February 2017, she raised a non-refoulement claim for A2 on the same basis, for which their claims were jointly considered and assessed together.  She also claimed that her husband and his brother were planning to come to Hong Kong to work, or check if she was with another man, or to harm her.

8.  By the Notice of Decision dated 27 June 2017, the Director of Immigration (“the Director”)  decided against the Applicants’ claims. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

The Board’s decision

9.  The Applicants appealed the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The Applicants attended an oral hearing on 30 October 2017 and by its decision dated 23 November 2017, the Board dismissed the Applicants’ appeal and confirmed the Director’s decision.  For the reasons set out in [74] to [90], the Board accepted A1’s claim that she had been abused by her husband over her previous extramarital affairs which had led to an incident of violence in 2015, but it found no reliable evidence of any real intention on the part of her husband or his brother to cause serious harm to her, let alone to kill her, as she claimed.  It found she had exaggerated her claims of her husband’s (and his brother’s)  adverse interest in her [83].

10.  In respect of A2’s case, A1 had claimed that A2 was at risk of harm as her husband had warned her if she came home with another illegitimate child, he would do something more serious than what he had done before.  The Board noted that previously her husband had only harmed her, but not the 1^st illegitimate child [88].  Hence, the Board did not consider that A2 would face any real or substantial risk of harm from A1’s husband upon return to Indonesia.

11.  The Board referred to relevant country of origin information (“COI”)  that there is assistance available for victims of domestic violence in Indonesia, as well as a specialised police task-force targeting domestic abuse [67].  There are also services available to single mothers [70].  The Board had also taken into account A1’s own intention to go back to her home village if refouled, despite the fact that other options are available to her and this suggested that A1 holds little real apprehension for her safety in the event of her return [87]. 

12.  For the aforesaid reasons, the Board found that there are no substantial grounds for believing the Applicants would be in danger of being subjected to torture or any real risk of harm if they were returned to Indonesia, and their non-refoulement protection claims were refused on all applicable grounds.

Application for leave to start judicial review

13.  On 22 March 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision.  By then they were late with their application, as Order 53 rule 4(1)  of the Rules of the High Court (Cap 4A)  requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.  The deadline fell on 23 February 2018.  The Applicants did not provide any explanation for their one-month delay nor did they provide any ground for relief.  In A1’s supporting affirmation, she merely mentioned that her life is in danger and she cannot go back.  She urged the court to consider her situation.

The JR Decision

14.  The Applicants did not request an oral hearing and the application was disposed of on paper.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant an extension of time and refused leave to apply for judicial review for reasons set out in [13] - [18] of the JR Decision:

“13.  As the last day of the three-month period for the Applicants to file their Form 86 fell on 23 February 2018, they were therefore one month late with their application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicants’ case, a delay of one month cannot be regarded as insignificant or insubstantial, for which they never provided any explanation, and as the record reveals that the Board’s decision was sent on the same day to their last reported address which is the same as that stated in their Form 86, I do not see any good or valid reason for their delay.

15.  As for the merits of their intended application, as noted above the Applicants did not put forward any proper or valid ground in support, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any merits in their intended challenge.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 

17.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim.”

Application for extension of time to appeal the JR Decision

15.  As mentioned earlier, the Applicants were late in filing a notice of appeal against the JR Decision.  They filed a summons in the Court of First Instance on 9 October 2020 for extension of time to appeal against the JR Decision.  That was dismissed by the Judge on 18 March 2021.  Hence, the summons to this court. 

Discussion

16.  In considering whether to extend time for appeal, 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 (although the lack of prejudice does not mean an extension will be granted).  As for (1), the Applicants were late for about 2 months between the deadline for appealing the JR Decision and the summons filed in the Court of First Instance. 

17.  As for (2), the reasons for the delay, A1 explained at the hearing before the Judge that she never received the JR Decision in the mail, and that it was only later when she reported to the Immigration Department on recognizance that she was informed by an officer of the JR Decision.  By then she and A2 were already out of time with their intended appeal.  A1 did not provide any evidence to corroborate her assertions, and the court file showed that the JR Decision was sent to the Applicants’ last reported address without being returned through the post.  The Judge had rightly held that A1 had failed to provide any good reason for the delay.

18.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision. 

19.  We shall discuss A1’s case first.  A1 did not suggest any grounds or any particulars of error in the JR Decision for the intended appeal.  At the hearing before the Judge, A1 merely repeated her claim that she and A2 cannot return to Indonesia for fear of harm from her husband. 

20.  The Judge had applied the right test and legal principles as set out in AW v Director of Immigration [2016] 2 HKC 393 in considering whether to grant an extension of time and the Judge had rightly held that the matter raised by A1 are not valid grounds of appeal and there was no merit in her underlying application. 

21.  In A1’s summons and supporting affirmation before this Court, she also failed to provide any grounds of appeal.  She merely stated that she did not know English and court procedure and did not have any financial resources.  Hence, it is not easy for her to appeal against the authorities.

22.  Nothing mentioned in A1’s supporting affirmation can be regarded as a valid ground of appeal.  She had submitted all her documentation in English and so obviously had access to language assistance.  Information about court procedure can be found at the unrepresented litigants resource centre.  A1 has failed to identify any specific errors in the JR Decision, or any potential grounds for reversing the JR Decision.  

23.  As mentioned earlier, the Board had as a finding of fact rejected the claim that A1 will face any real or substantial risk of harm from her husband upon return to Indonesia.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

24.  For these reasons, insofar as A1 are concerned, we do not see any reasonable prospect of success in her intended appeal, and it would not be in the interest of justice to grant an extension of time to appeal against the JR Decision.

25.  As for A2’s position, as mentioned previously, she is a minor and was not legally represented in these proceedings as required by Order 80 rule 2 of the Rules of the High Court. 

26.  The proper approach to children’s non-refoulement claims was considered by this Court (Lam VP, Barma & Au JJA)  in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971:

(a)  Non-refoulement claims by children, even if based on the same set of primary facts as their parents’, 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 a parent’s claim 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.[5]

27.  With the aforesaid principles, the Court needs to be satisfied that the Board had achieved a high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board.  On being so satisfied, it would be open to the Court to treat the non-compliance with Order 80, Rule 2 as a mere irregularity and to conclude that the minor’s intended judicial review is without merit notwithstanding the minor has not been legally represented before the Board and before the Judge (Jasvir Singh and others [2021] HKCA 53, [33]).

28.  As rightly pointed out by the Judge at [8] of the Leave Decision, A2’s claim was based on A1’s case of fear of being harmed by her husband upon return to Indonesia, which was rejected by the Board.  The Board separately considered, and rejected, A2’s claim of risk at [88] of its decision, drawing upon the evidence that the husband had not done any harm to the 1^st illegitimate child.  That was a conclusion of fact which the Board was entitled to make on the evidence. 

29.  We agree with the Judge that the Board had adopted the proper approach in its determination and assessment of A2’s non-refoulement claim and in our judgment, the Board’s finding on A2’s case is justified and reasonable.

30.  In the circumstances, we are satisfied that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board and the Judge.  In short, A2’s appeal has no merit.  We therefore treat the absence of legal representation of A2 before the Judge and in this appeal as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review.

31.  For these reasons, we do not see any prospect of success in either Applicant’s intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 29 March 2021 is dismissed accordingly.