RE SIAMAH AND ANOTHER

CAMP 284/2021

[2022] HKCA 1550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 284 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1907 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of DHCJ K W Lung (“the Judge”) dated 20 July 2021 refusing to grant an extension of time to appeal against the Judge’s decision dated 7 August 2020, in which the Judge refused leave for the applicants to apply for judicial review out of time against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 12 September 2017 (“the Board’s Decision”) dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 17 March 2015 and 29 November 2016 (“the Director’s Decisions”) which dismissed their non-refoulement claims.

Background

2.  The applicants are nationals of Indonesia, and they are mother and son. The 1^st applicant arrived in Hong Kong on 4 October 2010 as a domestic helper, but she had overstayed and was arrested on 2 July 2013. On 29 April 2013, she gave birth to the 2^nd applicant out of wedlock in Hong Kong. The applicants thereafter lodged their non-refoulement claims on 12 November 2014.

3.  The 1^st applicant’s claim was based on a fear of being harmed or killed by her creditor, a Madam Titin (“the Creditor”), should she be refouled to Indonesia. On behalf of the 2^nd applicant, the 1^st applicant claimed that he would be subject to discrimination, by reason of his being born out of wedlock, if he returns to Indonesia. The details of the applicants’ claims have been summarised by the Judge at [4] and [5] of his decision as set out in the CALL‑1 Form.[1]

4.  By Notices of Decision dated 17 March 2015 and 29 November 2016, the Director decided against the applicants’ claims. The Director’s Decisions covered the torture risk,[2] the persecution risk,[3] the BOR 2 risk[4] and the BOR 3 risk.[5]

5.  The applicants appealed to the Board. A hearing was held on 10 March 2016 (at which the applicants were present) during which the Board dealt with their claims based on risks other than BOR 2 risk. A further hearing was scheduled on 22 August 2017 to deal with BOR 2 risk but the applicants did not appear. By its written decision dated 12 September 2017, the Board dismissed the appeal. The Board’s Decision covered all four grounds for non-refoulement protection. The Board rejected the 1^st applicant’s claims regarding threats by the Creditor, which it did not find to be credible or established, by reason of inconsistencies between the 1^st applicant’s oral and written evidence. The Board also concluded that fears of the 2^nd applicant suffering discrimination on his return to Indonesia were not well-founded and were merely speculative.

The Judge’s decision

6.  Almost a year later, the applicants filed a Form 86 on 11 September 2018 (as amended by the Judge on 7 August 2020: see [3] of his decision of that date) seeking judicial review of the Board’s Decision out of time without setting out any grounds for judicial review. In the 1^st applicant’s supporting affirmation, she simply exhibited a copy of the Board’s Decision and the hearing bundle.

7.  After summarizing the facts and background of the case and giving due consideration to the Board’s Decision and the Director’s Decisions, the Judge refused to extend time for the applicants to apply for leave for judicial review and dismissed their application for leave to apply for leave for judicial review. The Judge gave the following reasons at [16] to [21] of the CALL‑1 Form dated 7 August 2020:

“ 16. The applicant appeared before me and confirmed that she had had a fair interview with the immigration officer and a fair hearing before the Board. She understood the Director’s Decision and the Board’s Decision. She had no comments on the Board’s findings. See paragraph 11 above.

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

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.”

The applications for extension of time to appeal

8.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicants at their last known address on 7 August 2020. This letter was not returned undelivered.

9.  Pursuant to Order 53 rule 3(4), the applicants had 14 days to lodge an appeal. Although the time limit had not yet expired because time did not run during August which is the court vacation under s 31 of the High Court Ordinance (Cap 4), the applicants took out a summons in the Court of First Instance on 24 August 2020 seeking extension of time to appeal.

10.  That application for extension of time was dismissed by the Judge on 20 July 2021.[6]

11.  By a summons filed in this court on 27 July 2021, the applicants renewed their application for an extension of time to appeal. In the summons, the applicants stated that they sought leave to appeal against the Judge’s decision dated 20 July 2021. But that was the Judge’s refusal to grant an extension of time for them to appeal against his decision dated 7 August 2020. Their application should instead be treated as a renewed application for extension of time to appeal against the Judge’s substantive decision of 7 August 2020, by which extension of time to apply for leave for judicial review was refused and the application for leave for judicial review was dismissed.

12.  In the supporting affirmation filed on the same date, the 1^st applicant relied on her lack of knowledge in court procedure as well as her “language handicap ability”.

13.  Meanwhile, on 24 August 2021, the 1^st applicant made an application for legal aid on behalf of the 2^nd applicant, who is a minor. On 28 October 2021, the said application was refused by the Director of Legal Aid.

14.  In the applicant’s written submissions dated 18 November 2021, the applicants stated that they disagreed with the Board’s Decision, and complained that they did not have legal representation in the assessment of their BOR 2 rights by the Director, which resulted in the Director’s Decision dated 29 November 2016.

15.  Having regard to the fact that the applicants were actually in time when they first applied in the Court of First Instance on 24 August 2020 for extension of time to appeal, on 24 March 2022 G Lam JA granted an extension of time to appeal to 14 days after the end of the General Adjournment of Proceedings which was in place at that time due to the pandemic and which ended on 11 April 2022.

16.  The applicants did not however file a notice of appeal as directed in April 2022. Almost four months later, on 16 August 2022, they filed a summons for another extension of time for filing their notice of appeal. The accompanying affirmation did not provide any explanation for their failure to lodge an appeal within the extended time. Nor have the applicants lodged any written submissions or further affirmation despite the directions of the Registrar of Civil Appeals dated 17 August 2022 stating that if they failed to do so they would be deemed to abandon the rights to rely on any further affirmation or written submissions.

17.  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, pursuant to Order 59 rule 14A of the Rules of the High Court.

Discussion

18.  This is the second application by the applicants in this court for extension of time. An extension was previously granted but the applicants failed to avail themselves of it. They have proffered no explanation why they failed to lodge an appeal within the extended time. The legal process should not be permitted to be dragged on without good reason. In these circumstances, we take the view unless there are real prospects of success in the intended appeal, a further extension should not be granted.

19.  We have therefore proceeded to consider the merits of the intended appeal.

20.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

21.  The applicants did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision. The applicants have not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

22.  In particular, the 1^st applicant’s much-repeated bare assertion that she would be in danger, harmed or even killed if she returned to Indonesia is inconsistent with the findings of both the Director and the Board.

23.  It is necessary for this court to consider the position of the 2^nd applicant separately, as he is a minor and has not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A). See Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

24.  The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(1)  non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;

(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 does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

25.  It is clear from the analysis set out in the decisions of the Director and the Board that they had specifically considered the 2^nd applicant’s claim, which is the risk of him facing discrimination by reason of being a child born out of wedlock (see the Board’s Decision at [41]-[45]; the Director’s Decision dated 17 March 2015 at [21.3] and [29]). In particular, the Board had specifically considered the position of the 2^nd applicant with reference to relevant Country of Origin Information as well as the local laws, before concluding that the rights of the 2^nd applicant as an Indonesian citizen, though born out of wedlock, would be protected.

26.  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.

27.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].

28.  The applicants have failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.

29.  As to the 1^st applicant’s complaint that she was not proficient in legal procedure, it is trite that a lack of knowledge in legal procedure is not a valid excuse for non-compliance with the relevant rules and deadlines.

30.  We note that in this case, the applicants had the benefit of legal representation from the Duty Lawyer Service in presenting their case to the Director, including the submission of their non-refoulement claim form and at their screening interview. This court has repeatedly held that it does not follow from the high standards of fairness applicable that a non-refoulement protection claimant is absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. It suffices for legal representation to be provided at the initial stage, with subsequent legal representation being provided on a merits basis. See 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 Ahmed Syed Rafiq [2018] HKCA 178.

31.  For these reasons, we do not see any prospect of success in the intended appeal, and accordingly we see no ground for exceptionally granting a second extension when the applicants have not explained why they failed to make use of the first extension. The summons filed on 16 August 2022 is accordingly dismissed.