LASMINI v. ALUS AAMIR SAMUEL alias AAMIR ALUS AAMIR SAMUEL

CAMP 324/2021

[2022] HKCA 1687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 324 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 535 OF 2019)

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J U D G M E N T

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

1.  By a summons filed on 6 August 2021, the applicants reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 12 May 2020 refusing to grant extension of time and dismissing their application for leave to apply for judicial review ([2020] HKCFI 763)  (“the Leave Decision”). By a subsequent decision dated 29 July 2021, the Deputy Judge also refused the applicants’ application for extension of time to appeal against the Leave Decision ([2021] HKCFI 2065)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decisions of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  respectively dated 20 February 2017 and 20 October 2017 (collectively “the Board’s Decisions”)  in which the applicants appealed against the decisions of the Director of Immigration (“the Director”)  respectively dated 31 July 2015 and 15 March 2017, rejecting their claims for non-refoulement protection (collectively “the Director’s Decisions”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicants are nationals of Indonesia.  The 1^st applicant arrived in Hong Kong on 4 January 2010 and was permitted to remain for employment as foreign domestic helper until 4 January 2012 or two weeks after termination of contract, whichever was earlier.  Her employment contract was prematurely terminated on 23 October 2011 and she overstayed in Hong Kong since 7 November 2011.  On 15 December 2011, she surrendered to the police and was arrested and referred to the Immigration Department for investigation on 17 December 2011.  On 4 January 2012, the 1^st applicant lodged a torture claim which was subsequently dismissed by the Director on 26 March 2013.

5.  On 13 January 2013, the 1^st applicant gave birth to the 2^nd applicant in Hong Kong.  By written representations dated 14 June 2013 and 24 May 2013, the applicants lodged their non-refoulement claim on the basis that they would face danger from (a)  a loan shark; (b)  the 1^st applicant’s parents owing to her relationship with her boyfriend in respect of their different religions and that the 2^nd applicant was born out of wedlock; and (c)  the 1^st applicant’s previous fiancé.  Factual details of the applicants’ claim were summarised by the Deputy Judge at [1] and [6] of the Leave Decision.

6.  By a Notice of Decision dated 31 July 2015 (“the Director’s 1^st Decision”), the Director rejected the applicants’ non-refoulement claim.  His decision in respect of the 1^st applicant covered all applicable grounds other than torture risk[1], namely BOR3 risk[2] and persecution risk[3].  His decision in respect of the 2^nd applicant covered all applicable grounds including torture risk, BOR3 and persecution risk.

7.  On 14 August 2015, the applicants appealed against the Director’s Decisions to the Board.  On 17 June 2016, an oral hearing was held before the Board where the 1^st applicant appeared in person and on behalf of the 2^nd applicant.  The 1^st applicant also gave oral evidence and answered questions from the Board.  On 20 February 2017, the Board dismissed their appeal (“the Board’s 1^st Decision”).

8.  In essence, the Board did not accept that the alleged potential assailants were interested to locate the applicants even if they (the alleged assailants)  should have huge resources and manpower, “as well as are willing to expend same to search for a needle in a haystack”.  The Board found no substantial risk or any substantial basis of fear for the applicants. The Board also found that there would be numerous places in Indonesia, at least other than the 1^st applicant’s home locality, where the applicants can safely live without undue hardship.  The Board thus found that the applicants’ appeal failed independently of a lack of credibility.  In any event, for completeness, the Board also took the view that the 1^st applicant was dishonest and unreliable and that the applicants were not genuine claimants as the 1^st applicant had taken three years and five months to lodge her non-refoulement claim and her explanations were unsatisfactory.[4]  Having assessed the evidence, the Board considered that the applicants failed to substantiate their claim on all applicable grounds and dismissed their appeal.

9.  Thereafter, the Director on his own initiative invited the applicants to submit further materials for consideration of their claim based on BOR2 risk[5]. The applicants had however provided no new materials despite the invitation.  By a Notice of Further Decision dated 15 March 2017 (“the Director’s 2^nd Decision”), the Director also rejected the applicants’ non-refoulement claim based on BOR2 risk.

10.  The applicants appealed the Director’s 2^nd Decision to the Board.  By a decision dated 20 October 2017, the Board dismissed the appeal without a hearing for the same reasons stated in the Board’s 1^st Decision as there was no new material or evidence submitted by the applicants to support the BOR2 risk claim.

The Leave Decision

11.  On 25 February 2019, the 1^st applicant, acting in person for herself and on behalf of the 2^nd applicant, filed a Form 86 together with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decisions and for extension of time to bring the application.  The applicants did not specify any ground of review in their Form 86 and the supporting affidavit.  The 1^st applicant attended an oral hearing before the Deputy Judge on 30 October 2019 in person and also on behalf of the 2^nd applicant.  An Indonesian interpreter was present to provide language assistance.

12.  By the Leave Decision, the Deputy Judge refused to grant extension of time and dismissed the applicants’ application for leave to apply for judicial review.  His reasons were set out in detail at [16] - [21] of the Leave Decision:

“16. I note that the applicants’ application is out of time; the latest Board’s Decision being dated 20 October 2017 and her application being 25 February 2019, there being a delay of more than one year. I asked the applicant for her explanation for such a delay. She explained that she did not receive the Board’s letter on time and she did not know her right of judicial review.

17. The applicants’ application cannot proceed without extension of time for them to file their application out of time. See Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28.

18. I am not satisfied with her explanation. I further consider that she has no merits in her application. See Nupur Mst v Director of Immigration [2018] HKCA 524 §14.

19. 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.’

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

CONCLUSION

21.    Since the applicants’ application for judicial review of the Board’s Decisions has no reasonable prospect of success, I refuse to grant them extension of time to apply for leave to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their application. See Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §21.”

The EOT Decision

13.  Under Order 53, rule 3(4)  of the RHC, the applicants may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

14.  On 8 September 2020, the applicants filed a summons (“the EOT Summons”)  together with a supporting affidavit for extension of time to appeal against the Leave Decision.  By then, they were 3.5 months late with their intended appeal. In the summons, the applicants only stated that they disagreed with the Deputy Judge as the Deputy Judge failed to show any cause to dismiss their appeal.  In the supporting affidavit, the applicants asserted that they did not receive the Leave Decision on time.

15.  By the EOT Decision, the Deputy Judge noted that the applicants failed to say in what respect the Board had erred in the Board’s Decisions and as there was no prospect of success in their intended appeal, the Deputy Judge dismissed their application for extension of time to appeal.

The present application

16.  By a summons and the 1^st applicant’s supporting affirmation filed on 6 August 2021, the applicants reapplied to this Court for extension of time to appeal against the Leave Decision.  No intended ground of appeal was specified in the summons or the 1^st applicant’s supporting affirmation.

17.  Given that the 2^nd applicant is a minor, by the directions made by the Registrar of Civil Appeals on 9 August 2021, the applicants were directed to take steps on behalf of the 2^nd applicant as soon as possible to comply with Order 80, rule 2 of the RHC, which may include applying for legal aid for the conduct of applicants’ appeal.  However, the applicants did not comply with those directions.  Accordingly, by the further directions made by the Registrar of Civil Appeals on 10 November 2021, this Court proceeded to determine the present summons based on the available materials.

18.  Pursuant to the directions made by the Registrar of Civil Appeals on 10 November 2021, the applicants lodged their written submissions on 26 November 2021.  In those submissions, the applicants only repeated the alleged factual basis and procedural history of their non-refoulement claims.  They did not specify what error the Deputy Judge had made in the Leave Decision.

Discussion

19.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

20.  We consider that the applicants’ delay of 3.5 months as very substantial and they simply failed to give any good reason for their delay.  This Court will only grant extension of time if their appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

21.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

22.  In relation to non-refoulement claims made by or on behalf of a minor, the Court’s approach is set out in Re Jasvir Singh [2021] HKCA 53 at [30] - [33] and Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2020] HKCA 971.

23.  The applicants have not provided any particulars or shown any errors in the Deputy Judge’s Decision in refusing to grant leave to apply for judicial review.  Rather they only repeated the factual basis and procedural history of their non-refoulement claim in their written submissions.  General assertions of their fear if refouled plainly do not constitute viable grounds of appeal.  Accordingly, as the applicants failed to advance any ground of appeal, their intended appeal must fail on this basis alone.

24.  That said, it appears from the Leave Decision that the Deputy Judge did not consider the question of whether the 2^nd applicant’s claim, who is a minor, had been properly considered separately from the 1^st applicant by the Board in accordance with the approach as set out in Re Jasvir Singh, supra,at [30] - [33] and Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office, supra. Notwithstanding this, as we will further explain below, nothing of substance turns on this point in the present case.

25.  Unlike the situation in Fabio Arlyn Timogan where there were materials specific to the minors’ claims which had not been advanced or adequately advanced to the Board[6], in the present case, there is no evidence that may give rise to any concern that there may be non-refoulement grounds that relate specifically only to the 2^nd applicant but were not advanced to the Board or not considered by it because of the lack of legal representation before the Board.  In particular, we are satisfied that the Board had indeed considered the 2^nd applicant’s claims independently:

(1)  The Board first noted the grounds made in support of the claims that were only specific to the 2^nd applicant as advanced.  See [3] of the Board’s 1^st Decision.

(2)  The Board then rejected each of these grounds specifically.  See [4] and [20(j)] of the Board’s 1^st Decision.

(3)  In relation to the claim that the 2^nd applicant would be subject to discrimination because he was born out of a wedlock, the Board rejected it on basis that (a)  according to the relevant country of origin information, he would be protected by the law and the police, and (b)  in any event, discrimination per se without serious personal harm (which was absent in the present claims)  was not a basis for non-refoulement.  As to (a), the Board was fully entitled to come to those views on the basis of the materials, and as to (b), that was a correct view in law.  See: Re: Fitri Ambarwati [2018] HKCA 461 at [18] per Barma JA.

(4)  In relation to the claim that the 2^nd applicant would be subject to physical harm by the 1^st applicant’s loan sharks and her ex-fiancé due to monetary reasons, the Board rejected the same for the same reasons in rejecting the 1^st applicant’s claims based on the same allegations.  As explained above, the Board was entitled to reach those conclusions based on his assessment and evaluation of the evidence.

26.  As held in Re Rina Mulyani [2021] HKCA 1156, at [25], if the Court is satisfied that the Board achieved high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support a minor-specific non-refoulement ground, it is open to the Court to conclude that the minor’s intended judicial review of the Board’s decision is without merit. This Court is satisfied that this is the situation in respect of the 2^nd applicant’s claim in the present case.

27.  All in all, the applicants have failed to show any error of the Deputy Judge in the Leave Decision, and have failed to raise any viable ground of appeal against it.  It will be futile to extend time to the applicants to appeal.

28.  For the above reasons, the applicants’ summons dated 6 August 2021 is dismissed, with the 2^nd applicant’s lack of legal representation be treated as an irregularity without rendering the proceedings a nullity.