RE NILA WATI PUJININGSIH

CAMP 87/2018

[2018] HKCA 538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 87 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 316 of 2017)

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JUDGMENT

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

1.  By summons filed on 14 June 2018, the applicant seeks leave to appeal out of time against the decision of P Li J (“the Judge”) given on 19 January 2018 refusing her leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 15 May 2017 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 28 November 2016 rejecting her and her daughter’s non-refoulement claims.

2.  Having considered the papers, we are of the view that it is appropriate to determine the application on paper without a hearing pursuant to Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A.

3.  The applicant is an Indonesian national.  She first came to Hong Kong on 26 May 2010 with permission to work as a domestic helper.  The last visa she held expired on 26 July 2014, two weeks after her employment was prematurely terminated.  She overstayed and was arrested by the police on 19 August 2015.  She made a non-refoulement claim on 27 August 2015.  After she gave birth to a daughter on 21 April 2016, she raised a non-refoulement claim on her daughter’s behalf on 3 June 2016. 

4.  The applicant’s and her daughter’s claims are based on fear of being abused and harmed by the applicant’s father.  According to the applicant, her father, who is a drunkard and gambler, is abusive and in the habit of extorting money from the applicant and her mother and assaulting them and the applicant’s siblings.  As she is not married and her daughter was born out of wedlock, the applicant fears her father will torture and kill them. It is also said that they cannot return to the applicant’s home village because the villagers are Muslims and will not accept an unmarried mother and an illegitimate child.

5.  By his decision of 28 November 2016, the Director rejected the applicant’s claim, having considered torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].    

6.  The applicant appealed to the Board.  An oral hearing was held on 28 March 2017.  The account given by the applicant to the Board was set out in [36] to [55] of the Board’s decision dated 15 May 2017.  For reasons given in [58] to [69] of its decision, the Board did not accept the applicant’s claim as credible.  The Board was not satisfied there were substantial grounds for believing the applicant would be in danger of being subjected to torture, or ill-treatment involving a breach of BOR 3 or BOR 2, or persecution whether for reason of any of the Convention grounds or for any other reason.  The Board therefore dismissed the appeal.    

7.  The applicant filed her Form 86 on 21 June 2017.  In her supporting affirmation filed on the same day, she advanced the following grounds in support of the relief claimed:

(1)   The Board failed to consider, with the birth of her daughter, she would face real risk upon return to Indonesia.

(2)   The Board did not give her sufficient opportunity to clarify elements of her case and the inconsistencies in it.

(4)   The Board’s assessment of severe pain and suffering was inappropriate in that it failed to consider psychological and non-physical aspects of torture.

(5)   The Director failed to make sufficient enquiry into the country of origin information (COI).

(6)   The Director failed to consider the concept of extended state acquiescence.

(7)   The Director had taken into account irrelevant considerations and there was basis to conclude she would not be subject to risk of torture or ill-treatment upon being refouled to Indonesia.   

8.   After holding an oral hearing, the Judge refused to give leave to apply for judicial review on 19 January 2018 as he considered the intended judicial review was not reasonably arguable and had no realistic prospect of success. 

9.  The 14-day period for the applicant to appeal against the Judge’s decision ended on 2 February 2018[5]. On 14 June 2018, the applicant took out the present summons seeking leave to appeal out of time.

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

11.  In this case, the applicant was late by more than four months.  The delay is substantial.  The applicant explained in her affirmation that because she did not have the money, she could not file the appeal within the time limit and it was not until her friend gave her money that she made this application.  We are prepared to accept the explanation.

12.  We turn to assess the prospects of the intended appeal against the Judge’s decision, which is a crucial consideration in an application to extend time: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226. 

13.  The applicant’s summons and affirmation did not set out any grounds to support her intended appeal.  She merely stated that she could not go back to Indonesia because her life would be in danger there.  In her written submission, the applicant said that, coming from a Muslim family, it was a grave mistake on her part to give birth to a baby without being married, and that both she and her daughter would face hatred, discrimination and danger in Indonesia.  She asked to extend their stay in Hong Kong until her father and her family are willing to accept her and her daughter.

14.  None of the grounds put forward by the applicant to support her intended judicial review application constitutes arguable challenge to the Board’s decision, including its rejection of the applicant’s claim as being not credible.  With regard to the applicant’s status as a single unmarried mother and her daughter’s status as an illegitimate child, the Board acknowledged that the COI indicated the two of them could experience discrimination, but was not satisfied on the available evidence that any generalised harm they might encounter was sufficiently serious to constitute persecution under the Convention, or amount to torture or cruel, inhuman or degrading treatment or punishment, or placing them at risk of being arbitrarily deprived of their lives.  We also do not see any basis to judicially review this part of the Board’s decision.

15.  We are unable to discern any error in law or procedure in the decision of the Board and also that of the Director, or any unfairness in the process by which the decisions were reached.  We agree with the Judge that the applicant’s intended judicial review is not reasonably arguable and has no realistic prospect of success. 

16.  As we are of the view that the intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time for appealing.  Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

17.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of High Court that the applicant may not request our determination to be reconsidered at an oral hearing.