RE JUMIATI AND ANOTHER

CAMP 66/2019

[2019] HKCA 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 66 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 478/2018)

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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 leave to appeal against the decision of Deputy High Court Judge Bruno Chan given on 11 January 2019 refusing to grant time to the applicants to apply for leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 11 May 2017 dismissing the applicants’ appeal against the decision of the Director of Immigration dated 28 November 2016 rejecting the applicants’ non-refoulement claim.

Background

2.  The 1^st applicant is a national of Indonesia who last arrived in Hong Kong on 27 January 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 December 2014 or within two weeks of its early termination.  On 29 December 2014 her employment was extended to 19 October 2015, but when it was prematurely terminated on 29 August 2015, she did not depart and instead overstayed until 7 October 2015 when she surrendered to the Immigration Department.

3.  On 16 February 2016 she gave birth in Hong Kong to her son, the 2^nd applicant.  On 28 October 2016, she lodged a non-refoulement claim for her and her son on the basis that if they returned to Indonesia they would be harmed or killed by her father and brother for bringing shame to the family for giving birth to a child out of wedlock.  The applicants have since been released on recognizance pending the determination of their claim.  The details of the applicants’ claim have been summarised by the judge at [1] to [3] of the CALL-1 Form.

4.  By a Notice of Decision dated 28 November 2016 (“the Director’s Decision”), the Director decided against the applicants’ claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicants appealed to the Torture Claims Appeal Board.  After a hearing on 6 March 2017, the Board dismissed the appeal on 11 May 2017 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [35], [41] and [54] of the Board’s Decision, the Board considered that there was not a real risk that the applicants will be subject to any of the proscribed harms. The Board was also satisfied at [52] that internal relocation would be viable.

The judge’s decision

7.  The applicants filed a Form 86 on 23 March 2018 which contained no ground for seeking relief. The Form 86 was filed about 10 months after the Board Decision and over 15 months after the Director’s Decision. 

8.  In her affirmation in support of the leave application dated 23 March 2018, the 1^st applicant advanced the following grounds for judicial review which are summarised below:

(1)    that she was not given any legal assistance in her appeal to the Board which was unfair to her as a self-represented litigant and a single mother from Indonesia who does not speak the local language or read or write English;

(2)    that she was just given a hearing bundle for her appeal hearing before the Board when the contents of the documents in the bundle were never read or translated to her in the appeal process;

(3)    that after the dismissal of her appeal, the Board’s Decision was never explained or interpreted to her; and

(4)    that neither the Director nor the Board had made any or proper enquiry into the relevant COI to ascertain whether she and her son would receive proper assistance or protection in Indonesia from the threats of her father and brother.   

9.  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 extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [22] of the CALL-1 Form:

“11. However, by then the applicants were more than seven months 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 unless the Court considers that there is good reason for extending the period within which the application shall be made.

12. As the Board’s decision was made on 11 May 2017, the last date for the applicants to make their application fell on 11 August 2017, and hence when they filed their Form 86 on 23 March 2018 they were more than seven months out of the three-month period under the rule, for which A1’s explanation was simply that she was not aware of the rule and that it took time for her to apply for legal aid and the subsequent appeal against the rejection of legal aid and hence the delay.

13. While ignorance of the law or rules can never be an acceptable explanation, and although it is true that the applicants’ legal aid application was indeed refused in December 2017 and their subsequent appeal was rejected in March 2018, it is unclear when exactly did they apply for legal aid after the Board’s decision of 11 May 2017, as it appears to me that if the applicants had made their application promptly soon after that it had taken unreasonably long for the Legal Aid Department to process their application, and in any event I do not find a delay of more than seven months to be excusable, as the applicants did not need to wait for the outcome of their legal aid application to lodge their application for judicial review which they were eventually able to do so without legal aid.

14. Be that as it may, it would be necessary for me to proceed to see if there is still in good reason in the circumstances to extend time, and the most significant matter would be to consider the merits, if any, of their intended application: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015.

15. For the applicants’ complaint under ground (1) of not having legal assistance in their appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: 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 Zafar Muazam [2018] HKCA 176.

16. The applicants already had the benefit of legal representation in presenting their case to the Director, and that A1 was able to testify and make representation at the appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.

17. As for their complaint under ground (2) of not being explained or translated the hearing bundle of documents all of which were in English, clearly A1 should be well familiar with most of the documents including the NCF which was completed on her instructions to her lawyer from DLS, as well as the record of screening interviews and the Director’s decision which had earlier all been made available to A1 when she still had legal representation, whilst she never raised the issue with the adjudicator at her oral hearing before the Board. In the premises I do not find any merit in this complaint of the applicants either.

18. Regarding her complaint of not being explained of the Board’s decision, clearly she has had access to legal assistance in her present application to challenge that decision, and in any event that per se cannot form any basis for her application.

19. As for their last ground, it is also clear that both the Director (in paragraphs 24 – 26) and the Board (in paragraph 45) of their decisions did refer to and consider the relevant COI regarding various assistances, reliefs and protection available to unwed mothers and illegitimate children in Indonesia, and hence there is simply no basis for the applicants to make this complaint.

20. Furthermore, the fact that it has been established by both the Director and the Board in their decisions 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, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21. In the premises and having proceeded to consider 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.

22. For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and in the absence of any good reason to extend time for the late filing of their application, which is accordingly hereby dismissed.”

Application leave to appeal and grounds for appeal

10.  By a summons dated 24 January 2019, the applicants sought leave to appeal from the judge’s decision.  On 2 April 2019, the judge refused the application because the applicants failed to identify any ground of appeal.

11.  By a summons dated 16 April 2019, the applicants renewed their application for leave to appeal before this court.  In the summons, the applicants claimed that:

“I would like to appeal against the order of [2 April 2019]. I am seeking for time extension for my further appeal because I am not aware of court proceedings so I could not do it properly so I am seeking help from to respected court”

12.  In her affirmation dated 16 April 2019, the 1^st applicant deposed that:

“Affirmation for apply for time extension for my appeal against order [dated 2 April 2019]. Seeking time extension for my appeal because I am not aware of court proceeding.”

13.  In their skeleton submissions dated 3 May 2019, the applicants submitted that:

(1)    the Board’s Decision and the Director’s Decision were prejudicial and biased.  The authorities have simply adopted a formulaic approach on all the claim and did not assess their case individually; and

(2)    there was a lack of legal and language assistance when their case was before the Director and the Board.

Discussion

14.  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.

15.  As is apparent from the CALL-1 Form, while noting that the delay was substantial and did not appear to him to be excusable, the judge refused to grant an extension of time because of the lack of merit in the proposed judicial review. As the judge’s refusal of an extension of time to bring judicial review proceedings is an interlocutory judgment, leave to appeal is required. 

16.  The only grounds of appeal set out in the skeleton submission complain of errors on the part of the Director and the Board, but do not identify any error on the part of the judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

17.  In the Notice of Appeal, the applicants claim that they were not aware of the law and they asked for time extension.  Ignorance of the law by itself is generally not a good reason for seeking extension of time for bringing an application for leave for judicial review.  The applicants have not identified any good reason for extension of time.  In any event, as the judge rightly held, the intended judicial review had no prospects of success, for the reasons which he gave.  

18.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 16 April 2019 is dismissed accordingly.

19.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.