RE MESIYATI AND ANOTHER

CAMP 280/2021, [2023] HKCA 502

On Appeal From [2020] HKCFI 1878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO. 280 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1885 OF 2018)

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J U D G M E N T

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

1.  This is the 1^st and 2^nd applicants’ renewed application for extension of time to appeal the decision of Deputy High Court Judge Lung (“the Judge”)  dated 7 August 2020[1], refusing to extend the time for them to apply for judicial review and dismissing their application for leave to apply for judicial review[2].

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dated 14 May 2018 dismissing their appeal against the decision of the Director of Immigration (“the Director”)  which rejected their claims for non-refoulement protection.

3.  The 1^st applicant had put in a written submission on behalf of herself and the 2^nd applicant to support the present application.

4.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, rule 14A of the Rules of the High Court, Cap. 4A.   

5.  The 1^st and 2^nd applicants are mother and son.  The 1^st applicant is a national of Indonesia aged 41.  She last entered Hong Kong on 17 August 2010 and was given permission to remain to work as a foreign domestic helper.  She overstayed after her employment contract was prematurely terminated on 10 May 2012, and was arrested by the police on 14 July 2012.  In March 2013, she made a torture claim[3], which was rejected by the Director on 26 April 2013.

6.  On 18 June 2016, the 1^st applicant gave birth to the 2^nd applicant in Hong Kong.  The 2^nd applicant’s father is a Nigerian man whom the 1^st applicant met in Hong Kong in 2015.  They are now no longer in a relationship.  On 15 November 2016, the 1^st applicant raised a non-refoulement claim on behalf of herself and the 2^nd applicant based on fear of being harmed or killed by the 1^st applicant’s husband and family because of her relationship with the 2^nd applicant’s father and the birth of the 2^nd applicant.  The 1^st applicant’s claim is further based on fear of being harmed or killed by loan shark in Indonesia because of an unpaid loan that her husband had made in her name.  The details of their claims were set out in [7] to [20] of the Board’s decision.

7.  In gist, the 1^st applicant claimed that in July 2010, her husband borrowed a loan of 40 million rupiahs in her name for building a house.  She had intended to repay the loan with earnings she made in Hong Kong, but her husband squandered her remittances instead of repaying the loan.  Due to the failure to make repayment, her husband was assaulted and threatened by the loan shark a number of times.  In August 2010, the 1^st applicant was also threatened and assaulted by the loan shark.  

8.  In 2015, the 1^st applicant was pregnant with the 2^nd applicant. Upon discovering her pregnancy, her husband threatened to harm her and her baby as well as the baby’s father.  The 1^st applicant also fears that she and her son will be discriminated and rejected by her family in Indonesia as she has brought shame to the family.  She has not contacted her family since December 2012.   

9.  By a decision dated 17 August 2017, the Director rejected the applicants’ claim having regard to the BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6] grounds.  There was no assessment under the torture risk ground in view of the previous refusal of her torture claim.  By the same decision, the Director also dismissed the 2^nd applicant’s claim having regard to the torture risk, persecution risk, BOR3 risk and BOR 2 risk grounds.

10.  The applicants’ appeal to the Board was heard on 19 March 2018, during which the 1^st applicant made representations on behalf of herself and the 2^nd applicant.  She informed the Board that her relationship with her parents was good but they did not know that she has a child in Hong Kong.  She last spoke with her husband in 2013.  She had no information about the loan shark and had forgotten about the assault incident which she mentioned at the screening interview.  She said it would be difficult for her and her son to return to Indonesia or to relocate to another city.

11.  By a decision dated 14 May 2018, the Board dismissed the appeal.  Primarily, the Board found the 1^st applicant’s evidence on the material aspects of her claim was contradictory which seriously undermined her credibility. In particular, her evidence about her marriage, her relationship with her maiden family[7], the circumstances surrounding the loan[8] and the assault incident[9] were vague and inconsistent, and her explanations on the contradictions were unconvincing[10].  The Board also had concern that she had little or no knowledge of the identity and details of the loan shark[11].  The Board rejected her assertions about her husband’s loan and the threats of harm from the loan shark[12]. With regard to her extramarital pregnancy, the Board acknowledged that her family might be upset about it, and that being a single mother with a child born of “mixed race” and out of wedlock, she might suffer some degree of ostracism and prejudice from people in Indonesia, which is a conservative society[13]. However, the Board found there was no credible evidence or independent information to indicate that either of the applicants would suffer the level of risk of harm as claimed, particularly in light of the passage of time[14].

12.  The Board had also separately assessed the 2^nd applicant’s claim on the torture risk ground in addition to a joint assessment of his claim on other applicable grounds[15].  The Board did not accept that he would be subject to risk of harm from the loan shark, in view of the rejection of the core claim of the 1^st applicant[16].  The Board also found there was insufficient evidence to indicate that he would face a risk of harm from the 1^st applicant’s husband or her family members or other people generally in Indonesia, given the lack of contact between his mother and her husband and family members since late 2012, and the fact that the 1^st applicant had been away from Indonesia since 2010.  Further, the harm or mistreatment feared for the 2^nd applicant was from private individuals without any state involvement, which did not fall within the definition of torture under section 37U(1)  of the Immigration Ordinance Cap.115[17]. Having considered the available country of origin information (COI)  and the materials before it, the Board did not accept the existence of a pattern of gross, flagrant or mass violations of human rights in Indonesia which would subject the 2^nd applicant to torture[18].  The Board concluded that both applicants had not been able to show that they were entitled to non-refoulement protection under any of the applicable grounds.

13.  By a Form 86 filed on 10 September 2018, the 1^st applicant applied on behalf of herself and the 2^nd applicant for leave to judicially review the Board’s decision.  The applicants did not provide any ground to explain the delay.  Apart from stating in the supporting affirmation that the Board disregarded their dangerous situation in Indonesia, they did not provide any ground in support of their application.

14.  Order 53 rule 4(1)  of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  As the Board’s decision was dated 14 May 2018, the applicants’ application was late by about one month.  

15.  The Judge listed the application for an oral hearing on 8 July 2020, but the applicants were absent.  The Judge proceeded to deal with the application, and by a Form CALL-1 dated 7 August 2020 refused to extend time for the application and dismissed the application.  He gave his reasons at [17] to [21] as follows:

“17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 12 above.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1)  … … Assessment of evidence and COI materials   and 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 errors of law or procedural unfairness or irrationality in the decision of the Board.”

19. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20. The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

21.  Since the applicants’ joint application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for them to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.”

16.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the 14-day period for the applicant to appeal the Judge’s order would expire on 14 September 2020[19].

17.  By a summons and an affirmation filed on 24 August 2020, the 1^st applicant applied on behalf of herself and the 2^nd applicant for leave to appeal out of time against the Judge’s decision dated 7 August 2020.  In her supporting affirmation, she explained that the judicial review application was made out of time because there was a delay in receiving the Board’s decision and she had no knowledge of the judicial system of Hong Kong.

18.  The Judge dealt with the application on the papers.  By his decision handed down on 20 July 2021[20], the Judge refused the application.

19.  On 26 July 2021, the 1^st applicant filed the present summons.  They also applied for legal aid but their applications were refused on 3 December 2021.

20.  In considering whether to grant extension of time to appeal, we will have regard to: (1)  the length of the delay; (2)  the reasons for the delay; (3)  the merits of the intended appeal; and (4)  any prejudice to the respondent if extension of time is granted.

21.  As noted in [16] above (see also footnote 19), the time for the applicants to lodge a notice of appeal only expired on 14 September 2020.  The applicants were therefore not out of time on 24 August 2020 when they filed the summons to apply for extension of time.  However, by the time the Judge dealt with their application, the 14-day time limit had expired.  In the circumstances, we consider the delay is excusable. 

22.  We turn next to consider the merits of the intended appeal.  In assessing the merits of the intended appeal against refusal of leave to apply for judicial review, we 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].

23.  The applicants’ Form 86 was about one month late.  Order 53 rule 4(1)  of the Rules of the High Court provides that the time for applying for leave to apply for judicial review may be extended when there are good reasons.  The principles governing applications for extension of time to apply for judicial review was examined in AW v Director of Immigration and Anor (unreported)  CACV 63 of 2015, 3 November 2015 at [27] and [35].  In sum, the Court has to consider: (1)  the length of the delay; (2)  the reason for the delay; (3)  the merits of the substantive application; and (4)  any prejudice to the putative respondent and to the public administration if the challenged is refused/allowed.  The Court will also have regard to whether the judicial review raises issues of general or public importance.

24.  The applicants have not provided any grounds for their intended appeal in the notice of appeal or the supporting affirmation.  They only ask that their applications be reconsidered.  In the written submission, it was said that the Board and the Director had failed to take into account relevant considerations and had taken into account irrelevant considerations, and hence their decisions are illegal.

25.  For the following reasons, we are of the view that the applicants’ intended appeal has no merits:

(1)  The applicants were about one month late when they filed their Form 86.  This is not an insignificant delay.  The burden is on the applicants to show that there are good reasons for the delay, rather than a good excuse: AW v Director of Immigration and Anor at [27].  The applicants have not given any reasons for their delay in the application papers, and did not attend the hearing on 8 July 2020.  In the circumstances, the Judge was entitled to refuse to extend the time for them to apply for judicial review.

(2)  In complaining that the Board had considered irrelevant matters and failed to consider relevant matters, the applicants have not specified what are the irrelevant matters considered by the Board and what are the relevant matters that it had failed to consider. The general assertions without any particulars were insufficient to enable the Court to review the Board’s decision.

(3)  Assessment of evidence and risks of harm are matters for the Director and the Board, who are the primary decision makers. The Court may only disturb their findings if it can be shown that their decisions are wrong in law, irrational or procedurally irregular or unfair. Both before the Judge and in the present application, the applicants have not pointed to any errors, irregularities or unfairness in the process before the Director or in the appeal before the Board.

26.  In addition, we have examined the Board’s Decision with particular regard to the case of the 2^nd applicant as a minor in light of this Court’s decisions in Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33].  In the present case, the 2^nd applicant’s claim was primarily premised on the 1^st applicant’s claim.  The Board had separately assessed the 2^nd applicant’s claim based on the torture risk ground and conducted a joint assessment of his and his mother’s claims on other applicable grounds.  As the Board had rejected the 1^st applicant’s evidence and the factual basis of her claim, there was no factual basis to support the 2^nd applicant’s claim.  

27.  Although the Board assessed the 2^nd applicant’s claim under other applicable grounds together with the 1^st applicant’s claim, it is clear from its decision that the Board was keenly aware of the need to assess any risk of harm that the child may face if he has to go to live in Indonesia with the 1^st applicant.  In particular, the Board accepted that the applicants would be vulnerable to or could suffer some degree of ostracism and prejudice from people in the conservative society of Indonesia.  The Board, however, pointed out that there was no credible evidence or independent information to support the suggestion that there was a real risk of either of them suffering from harm on the basis of their claimed fear or that would satisfy the requirements for non-refoulement protection[21].  

28.  The Board also had regard to the fact that the 1^st applicant and her husband have already ended their relationship, and the husband had not contacted the 1^st applicant since he found out that she was pregnant[22]. The Board further noted that, according to the 1^st applicant, she had good relationship with her family and her evidence, and on the evidence her parents or siblings do not appear to be violent individuals, nor had they ever threatened or harmed her in the past[23].  

29.  For these reasons, the Board concluded that the risk of either or both the applicants being subjected to serious harm by the family and/or her husband was remote.  This is a conclusion that the Board was entitled to make on the basis of evidence available before it.

30.  In short, we do not see any material that may give rise to a concern that there may be non-refoulement grounds that related specifically only to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.  We will therefore treat the non-compliance with Order 80 rule 2 of the Rules of the High Court (in that the 2^nd applicant has not been acted by a next friend acting by a solicitor)  as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court (Zoraydah v Torture Claims Appeal Board [2020] HKCA 442).

31.  For the above reasons, the Judge did not err in finding the intended judicial review has no reasonable prospect of success, and in refusing leave to apply for judicial review.

32.  As the applicants’ intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 26 July 2021.