RE IIN-HANSIYAH AND ANOTHER

CAMP 128/2024, [2025] HKCA 998

On Appeal From [2024] HKCFI 620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 128 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1819 OF 2020)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.  On 14 September 2020, the applicants issued their application for leave for judicial review by Form 86 in HCAL 1819/2020 out of time.  The applicants’ intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 1 June 2020 which confirmed the Director’s Decision of 9 May 2019. 

2.  Under Order 53, rule 4(1) of the Rules of the High Court, an application for leave for judicial review is to be made promptly and in any event within three months from the day when grounds for the application first arose (unless good reasons exist to extend time).  Being out of time for about 13 days, the applicants took out an application on 14 September 2020 for judicial review.  Deputy High Court Judge Bruno Chan refused to grant extension of time for leave to apply for judicial review on 29 February 2024 and dismissed the application for leave to apply for judicial review.

3.  By a summons filed on 8 May 2024, the applicants sought extension of time to appeal the Judge’s decision, as the 14‑day period to file the notice of appeal against the Judge’s decision under Order 53, rule 3(4) of the Rules of the High Court had expired on 14 March 2024.  In a decision of 11 July 2024 (‘Judge’s Second Decision’), Deputy High Court Judge Bruno Chan refused the applicants extension of time to appeal and dismissed the summons of 8 May 2024.

4.  On 11 July 2024, the applicants filed the present summons to make a further application to this Court for extension of time to appeal.  As the 2^nd applicant is a minor, the Registrar of Civil Appeals by directions on 17 July 2024 directed that the minor applicant should seek legal representation including taking steps to apply for legal aid.  The 2^nd applicant took no action to apply for legal aid^[1].   The Registrar of Civil Appeals on 30 October 2024^[2] directed that the appeal was to proceed regardless and the applicants were directed to lodge written submissions failing which the applicants’ right to make further submissions is deemed waived^[3].

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicants’ summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing. 

2)  Factual background

6.  The 1^st applicant is an Indonesia national and the mother of the 2^nd applicant daughter who was born on 8 September 2018 in Hong Kong to a Pakistan national called Malik who is also a non-refoulement claimant.  The 1^st and 2^nd applicants are Indonesia nationals.  The 2^nd applicant’s permanent residence status has not been established[4].

7.  The 1^st applicant last arrived in Hong Kong in April 2018 and was permitted to remain in Hong Kong as a foreign domestic helper.  On 8 September 2020, the 1^st applicant gave birth to the 2^nd applicant in Hong Kong.  The 1^st applicant’s employment contract was prematurely terminated on 10 November 2018.  The 1^st applicant had overstayed since 25 November 2018.  On 21 December 2018, the applicants lodged non-refoulement claims.

8.  The basis of the applicants’ claims is that the 1^st applicant’s father would harm or kill both applicants as the 2^nd applicant is regarded as an illegitimate child and brings humiliation to the family[5].

3)  The Director’s Decision

9.  The Director decided against the applicants’ non‑refoulement claim on 9 May 2019.   The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution[6] (‘the Director’s Decision’).

4)  The Board’s Decision

10.  The  applicants appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)^[7].  After a hearing held in 19 August 2019, the Board dismissed the applicants’ appeal on 1 June 2020 (‘the Board’s Decision’).

11.  The Board’s finding is summarized in the decision of the Judge at [7]-[8].

5)  Decision of the Judge

12.  As the 2^nd applicant is a minor, the Judge had asked the 1^st applicant (on the 2^nd applicant’s behalf) to seek legal representation whether by duty lawyer or private solicitors^[8].

13.  In his decision dated 29 February 2024, the Judge held that the applicants failed to put forward any proper ground for their intended judicial review[9].  With the subsequent legitimization of marriage in the 2^nd applicant’s parents[10], the Judge held that he was unable to find merits in the applicants’ application for judicial review.  Even if the risk of the 1^st applicant’s father harming the applicants still somehow existed, relocation within Indonesia was viable[11].  The Judge held that the 2^nd applicant’s claims were separately considered by the Board, and that non-compliance with Order 80, rule 2 of the Rules of the High Court was a mere irregularity without rendering the appeal a nullity[12].  The application for extension of time for appeal and also the leave application were dismissed[13]. 

6)  Legal principles

14.  In considering whether to extend time for appeal, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

(4)  prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

15.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to file a notice of appeal against the Judge’s decision.  The Judge’s decision refusing extension of time for leave to apply for judicial review was dated 29 February 2024.  The deadline was then 8 March 2024.  The application for seeking extension of time to appeal the Judge’s decision was filed on 8 May 2024.  The delay was hence around two months. 

16.  In the applicants’ summons filed on 8 May 2024, all that was barely stated was that the time was over, and they seek permission for extension.  In the supporting affirmation, it was stated that the High Court did not provide them with information, and that information was only received from the Immigration officer, by the time of which time was already over^[14].  We find no fault in the Judge’s decision of 11 July 2024, where the Judge found that the Court record showed that the decision was sent to the applicants’ last known address on 29 February 2024 without being returned undelivered, and that ignorance of the rules can never be accepted as any valid excuse for non-compliance of Court time limits. Importantly, the applicants failed to put forward any valid grounds of appeal against the Judge’s decision of 29 February 2024^[15].

(2)  Prospect of the intended appeal

17.  In the applicants’ summons, the applicants provided no grounds of appeal but simply stated that they do not agree with the decision and they wanted to appeal.  In the applicants’ affirmation, they barely stated that they were late and they ask for extension.

18.  In our judgment, the applicants do not have any prospect of success in their intended appeal.

19.  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 v Director of Immigration [2018] HKCA 524 at [14].

20.  Further, it is well established that 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 as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

21.  In relation to the 1^st applicant’s appeal, the summons has not pointed to any error in the Judge’s decision or the reasons he gave for his decision.  The Board rejected the 1^st applicant’s claim based on the implausibility of her evidence that there was any real risk of harm[16]. Further, we agree with the Judge’s decision that the evidence shows that the subsequent legitimization of marriage of the 2^nd applicant’s parents i.e. the 1^st applicant and the father Malik, is good evidence that the feared illegitimacy of the 2^nd applicant falls apart[17].  In our view, the 1^st applicant has failed to raise any viable ground of appeal against the Judge’s decision. As the 1^st applicant’s appeal has no merits, we dismiss it.

22.  In the case of the 2^nd applicant, she is a minor.  The Court’s approach in considering a minor’s claim is as set out in Re Jasvir Singh [2021] HKCA 53, at [30] to [33] :

‘ 30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2)  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;

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34]‑[35].

31.  Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non‑refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non‑refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case‑by‑case basis whether there exist matters that may support potential minor-specific non‑refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board.  See Fabio Arlyn Timogan at [47]‑[54].

32.  If the court finds that it is reasonably arguable that the Board had not considered the minor’s non‑refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC.  Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non‑refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board.  See: Fabio Arlyn Timogan at [50]‑[53], [56]‑[57].

33.  Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor‑specific non‑refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.’

23.  In the present case, the Board had separately considered the 2^nd applicant’s claim[18].  The Adjudicator had in fact researched additional Country of Origin Information on treatment of single mothers and their children in Indonesia which he shared with the 1^st applicant.  We do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s Decision.   The Judge had separately considered the 2^nd applicant daughter’s claims and reached the same view[19].  There is nothing to indicate that the merits of the 2^nd applicant’s claim or any underlying matter that may support minor-specific non-refoulement grounds had not been adequately explored before the Board and the Judge due to the lack of legal representation.  Giving the matter close and anxious scrutiny, there is no reasonable prospect of success in the intended judicial review of the 2^nd applicant.  The non‑compliance with Order 80, rule 2 can be treated as a mere irregularity and the 2^nd applicant’s application for extension of time to appeal should be dismissed notwithstanding that she has not been legally represented.

24.  Since the applicants have not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

25.  As the intended appeal is unarguable, it would be futile to give an extension of time.  We refuse to extend time to appeal the Judge’s decision of 29 February 2024.  Accordingly, we dismiss the applicants’ summons filed on 11 July 2024.