RE SITI NAISAH AND ANOTHER

CAMP 101/2020

[2021] HKCA 33

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 101 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 2823 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

A. Introduction

1.  On 9 January 2020, Deputy High Court Judge Lung (“the Judge”) refused to extend the time for the 1^st and 2^nd applicants to apply for judicial review.[1]  The applicants’ intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) given on 22 December 2017 dismissing their appeal against the decisions of the Director of Immigration (“the Director”) dated 29 May 2015 and 16 October 2017 refusing their non-refoulement claims.

2.  On 2 July 2020, the Judge refused to give leave to the 1^st and 2^nd applicants to appeal his decision to the Court of Appeal.[2]

3.  By summons filed on 16 July 2020, the 1^st and 2^nd applicants applied to this Court for leave to appeal against the decision of 2 July 2020. The 1^st applicant had filed an affirmation and also lodged a written submission in support of the summons.

4.  Having regard to the matters stated in [18] to [20] below, the Registrar of Civil Appeals directed on 29 July 2020 that the summons be treated as an application for extension of time to appeal against the Judge’s 9 January 2020 decision.  Accordingly, we will deal with this summons as an application to extend time for appealing the 9 January 2020 decision.

5.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the 1^st applicant’s affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.  We have therefore proceeded to process this application on the paper.

B.      Background

6.  The 1^st applicant is a national of Indonesia.  She is 40 years old.  She first arrived in Hong Kong on 17 April 2009 and was given permission to remain for employment as a foreign domestic helper until 17 April 2011.  Several extensions of stay had since been granted, with the last one expiring on 21 October 2014.  On 20 August 2014, her employment contract was prematurely terminated.

7.  The 2^nd applicant is the 1^st applicant’s daughter born on 6 August 2014 in Hong Kong. On her birth certificate, it was recorded that her permanent resident status is not established.  She was permitted by the Director to remain in Hong Kong as a visitor until 21 October 2014.

8.  Both applicants did not depart from Hong Kong when their extension to stay expired on 21 October 2014.  Their applications for further extension of stay were refused by the Director on 23 October 2014.  On 20 November 2014, the 1^st applicant lodged a non-refoulement claim for herself and also the 2^nd applicant. 

9.  The claim, as advanced by the 1^st applicant, is based on fear of being killed or harmed by the 1^st applicant’s husband, Suparmin (“S”).  The details of the claim have been set out in the Director’s first decision at [6] and the Board’s decision at [4] to [39]. 

10.  In gist, the 1^st applicant claims that shortly after their marriage in 2004, S started asking for money from her and would resort to violence if she could not or refused to meet his demand.  S assaulted her even when she was pregnant, resulting in three miscarriages.  On one occasion after her first miscarriage, a neighbour who intervened to help the 1^st applicant was chopped on the wrist by S.  S even sold six plots of land that were given to the 1^st applicant by her father.  The 1^st applicant had once sought help from the local police.  However, instead of getting help, she was raped by three police officers.  When S learnt of the incident, he was angry at the 1^st applicant and beat her up.  The 1^st applicant eventually left home to work in other parts of Indonesia, including Jakarta, and also in Singapore.  In 2009, she began working in Hong Kong.  S continued to demand money from her by telephone calls and text messages.  Not only did he threaten the 1^st applicant, S also went to threaten her mother and had used violence on her on one occasion.  S has since married another woman and they have a child.        

11.  According to the 1^st applicant, the 2^nd applicant’s father is an Indian with whom she became acquainted in Hong Kong but with whom she has now lost contact.  Although she has not told S about the birth of the 2^nd applicant, she guesses he may have been told by others.  The 1^st applicant fears S would harm or kill the 2^nd applicant.  She is also afraid that the 2^nd applicant will not be accepted by others in Indonesia.  She said her uncle had told her not to go back to the village because, being Muslims, her relationship with the Indian man and the birth of the 2^nd applicant is a disgrace to the family.   

C.      The Director’s decision

12.  By two decisions dated 29 May 2015 and 16 October 2017, the Director rejected the applicants’ claim.  The first decision was based on the torture risk[3], BOR 3 risk[4] and persecution risk[5] grounds, and the further decision was based on the BOR 2 risk[6] ground.  The 2^nd applicant’s claim was assessed as part of the 1^st applicant’s claim, and not separately assessed.  The Director explained in the first decision (at [1]) that this was because the 1^st applicant indicated in the non-refoulement form that her daughter’s claim was based on her claim.     

D.      The Board’s decision

13.  The applicants’ appeal to the Board was heard on 5 October 2016.  By its decision dated 22 December 2017, the Board dismissed the appeal.  Primarily, the Board found the 1^st applicant’s evidence incredible and unreliable in some material aspects.  The Board considered that, even accepting the 1^st applicant’s claim as reliable, the level of risk was low because the 1^st applicant could have divorced S, and also because internal relocation was viable and state protection was available.  The Board was also of the view that the problem between S and the 1^st applicant was a private dispute with no state or official involvement, and there was no evidence in the case indicating risks of arbitrary deprivation of lives.  The Board concluded that both applicants failed to establish any ground that would entitle them to non-refoulement protection.

14.  Like the Director, the Board did not undertake a separate consideration or assessment of the 2^nd applicant’s claim.  The Board noted at [39] of its decision that the 1^st applicant worried that S would treat her daughter badly, and that the 2^nd applicant’s claim was based on the 1^st applicant’s case. 

E.      The Judge’s decisions

15.  By a Form 86 filed on 10 December 2018, the applicants applied for leave to judicially review the decisions of the Director and the Board.  The application was supported by an affirmation made by the 1^st applicant which set out the grounds for seeking relief as follows:

(1)     The Board should not have dealt with the Director’s further decision since the notice of appeal only related to the first decision and she did not have an opportunity to lodge an appeal in respect of the further decision.  The 1^st applicant did not understand the content of the Director’s further decision, the definition of BOR2 risk, and what further information should be provided.

(2)     Unlike some other applicants, the 1^st applicant did not have translation assistance from the Duty Lawyer Scheme in preparing the notice of appeal, and in understanding the content of the appeal bundle and the Board’s decision.  This is procedurally unfair and fails to meet the high standard of fairness.

(3)     The Board was biased in its finding on credibility.  Instead of taking an overall view of the claim, the Board only looked at one or two issues and failed to consider that the events happened years ago and the 1^st applicant might have vague memories of them due to the threats she received and having given birth to a child.        

16.  Order 53, rule 4(1) of the Rules of the High Court requires 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.  The applicants’ application for leave to apply for judicial review was late by more than eight months.

17.  The Judge heard the application at an oral hearing on 5 June 2019.  By his decision dated 9 January 2020, the Judge refused to extend the time for applying for judicial review and dismissed the applicants’ application for leave to apply for judicial review. He gave his reasons at [20] to [34] of the Form CALL-1 as follows:

“The Director’s Decisions

20. In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

21. The applicant has not set out any exceptional circumstances.

22. Also, the Court of Appeal in Re Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

23. The applicant’s application for leave to apply for judicial review of the Director’s Decisions therefore fails in limine. I dismiss her application.

The Board’s Decision

24. The application is late. The Board’s Decision is 22 December 2017. She filed Form 86 on 10 December 2018. I have to consider the merits of her application before I decide whether time should be extended for her application.

25. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered that she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her. Her friend had explained the Hearing Bundle and the Board’s Decision to her.

26. I put the Board’s findings to her for her comments. She said that she had no comments.

27. It is obvious that as the Board rejected her evidence in support of her claim.

28. The applicant has no absolute right of free legal representation at every stage of the proceedings as she has already had legal representation at the screening stage. Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

29. The fact that the applicant did not have language assistance is irrelevant to her application for leave to apply for judicial review. Re Magar Surendra [2019] HKCA 667, 13 June 2019. There is no evidence that she had sought assistance from the Director or the Board and they refused her request for assistance in the language. She cannot raise this complaint.

30. Ground (1) is a non-point as the Director’s Decisions are dealt with by the Board.

31. Ground (2) fails in light of the above authorities.

32. The Adjudicator is the final fact-finder of her case. He had set out the reasons for not believing her. Those were the examples only. He had taken all the incidents into account. The applicant still cannot explain those incidents which the Adjudicator found contrary to common sense. These matters are not matters of memory. They are contrary to common sense. Whether the Adjudicator believed her is a matter within the Adjudicator’s discretion provided he had reasons in support of his conclusion. Ground (3) fails too.

33. The applicant fails to show that she has a reasonable chance of success in their proposed judicial review.

CONCLUSION

34. Since the applicants’ application for judicial review has no reasonable prospect of success, there is no reason to grant them extension of time to file their application. I refuse to grant them the extension of time. Accordingly, I dismiss their application.”

18.  By a summons filed on 17 January 2020 together with an affirmation made by the 1^st applicant, the applicants applied for leave to appeal the Judge’s decision on the basis that the Judge’s decision not to extend time for applying judicial review is an interlocutory decision that requires leave to appeal.  The Judge dealt with the application on the papers without holding an oral hearing.  By his decision handed down on 2 July 2020, the Judge refused to give leave to appeal. 

F.      The present application

19.  On 16 July 2020, the applicants issued the present summons to apply for leave to appeal the Judge’s 2 July 2020 decision.

20.  On 14 July 2020, two days before the present summons was filed, the Court of Final Appeal handed down the Reasons for Judgment in H v Director of Immigration [2020] HKCFA 22 which held that there was no need to apply for leave to appeal to the Court of Appeal in respect of a refusal to extend time for applying for judicial review.  However, by then, the time for the applicants to appeal the Judge’s 9 January 2020 decision had expired.  In light of this, the Registrar of Civil Appeals directed on 29 July 2020 that the 16 July 2020 summons be treated as an application for extension of time to appeal the Judge’s decision of 9 January 2020.  As mentioned in [4] above, we will deal with the summons on this basis.

21.  The Board has informed the Court that it takes a neutral stance on the summons.[7] The Director has not responded to the summons.

G.      Reasons for our decision

G1.    Applicable legal principles     

22.  In considering whether to extend time for appealing 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 success 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). 

23.  Having regard to the matters stated in [18] to [20] above and the fact that the applicants are not legally represented, we are prepared to accept that the delay in bringing the appeal against the 9 January 2020 decision is excusable.  We would focus on the prospect of success of the intended appeal against the Judge’s refusal to extend time for applying for judicial review.     

G2.    Delay in apply for judicial review

24.  We will first examine the applicants’ delay in applying for judicial review.  The 1^st applicant explained in the summons, her supporting affirmation and written submission, the contents of which are similar, that she did not receive any letter and was not aware of the Board released the decision in December 2017 until October 2018 after she had given birth to her second baby.  She also stated in her affirmation that she needed time to get help as she is a foreigner and did not understand the judicial system in Hong Kong.  She further stated in the written submission that she was then pregnant with her second child, and the delay was not her fault as the case officer of the Immigration Department should have informed her that the case was finished.   

25.  The papers filed in this application have not elaborated on why the applicants did not receive the Board’s decision.  However, at the hearing before the Judge, the 1^st applicant had explained that she had changed her address and she had informed the Director (but not the Board) of the new address.  The Judge stated in his decision that:[8]

“When asked for explanation for the delay, the applicant[9] was referring to her change of address and she had given her new address to the Immigration Department. It is indeed difficult to sort out the real reason for her delay. I can say that she has failed to give good reasons for such a long delay. …”

26.  It is not altogether clear from the decision whether the Judge believed the 1^st applicant’s account and what were his reasons for finding that the applicants failed to give good reason for the delay.  In our view, it is not implausible that the Board was not aware of the 1^st applicant’s new address because the 1^st applicant had only notified the Director of the change of address.  We further take the view that although the applicants should have also updated the Board of their new address, their omission to do so has to be viewed against the fact that they are litigants in person.  We are prepared to accept the applicants’ explanations for the delay.

G3.    Merits of the 1^st applicant’s intended judicial review

27.  The more important consideration is the merits of the intended judicial review to which we now turn.  Although the Judge considered there was no good reason for the delay, he had considered the grounds put forward in the 1^st applicant’s affirmation in support of the Form 86 and concluded that they were unarguable and had no reasonable prospect of success (see [20] to [34] of Form CALL-1 as quoted in [17] above). 

28.  Neither the present summons nor the 1^st applicant’s supporting affirmation has set out any proposed ground of appeal against the Judge’s decision.  There is a complaint in the 1^st applicant’s affirmation that the Board disregarded her dangerous situation.  The written submission similarly had not identified any error in the Judge’s rejection of the ground for seeking relief.

29.  Having considered the materials before us, subject to what we shall say about the case of the 2^nd applicant, we see no proper basis for disturbing that the Judge’s analysis and reasons for rejecting the grounds for seeking relief[10]. 

30.  On the first ground, as the appeal before the Board was a rehearing, the Board was entitled, as well as obliged, to consider all the applicable grounds, including the BOR2 risk ground covered by the Director’s further decision.  The fact that the applicants’ appeal was directed at the Director’s first decision is irrelevant and the Board did not err in considering also the BOR 2 risk ground in its decision. 

31.  On the second ground, this Court has repeatedly held that the high standard of fairness does not mandate the provision of free language or legal assistance at all stages of the proceedings.  It is for the Duty Lawyer Scheme to examine the merits and other relevant matters, and to decide on a case by case basis whether legal representation should be provided in the appeal before the Board. 

32.  As to the third ground, the relevant legal principles have been summarised in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In summary, evaluation of evidence and credibility and assessment of risks are matters for the Director and the Board, who are the primary decision makers.  Judicial review applications do not operate as a further avenue of appeal.  Although in non-refoulement cases, the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court will not usurp the function of the Board.  Assessment of credibility and evidence, Country of Origin Information materials and risk of harm, availability of state protection and viability of internal relocation are primarily within the province of the primary decision makers.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision and/or the process by which the decision is made.  The matters raised in the third ground, which are general assertions, are insufficient to justify the court interfering with the Board’s findings on the 1^st applicant’s credibility.

33.  For the above reasons, the 1^st applicant’s intended judicial review has no reasonable prospect of success. 

G4.    Conclusion on the 1^st applicant’s application

34.  It follows from the above analysis that the Judge did not err in refusing to extend time for the 1^st applicant to apply for judicial review as it would be futile to do so.  In the circumstances, the 1^st applicant’s intended appeal against the Judge’s decision of 9 January 2020 has no reasonable prospect of success, and it would be futile to extend time for her to appeal the decision. 

35.  For the above reasons, we refuse the 1^st applicant’s application and dismiss the summons as against the 1^st applicant. 

36.  Since the 1^st applicant’s application is entirely without merit, we make an order under Order 59 rule 2A(8) of the Rules of the High Court that no party may request the determination to be considered at an oral hearing inter partes.

G5.    Merits of the 2^nd applicant’s intended judicial review

37.  In the case of the 2^nd applicant, it may be that the basis of her claim is to some extent dependent on the acceptance of the 1^st applicant’s claim, notably her case that S would be hostile to and might harm the 2^nd applicant, and that the 2^nd applicant would not be accepted in her home country and her Muslim family.  However, it remains necessary to consider whether the 2^nd applicant’s claim has been properly considered and assessed by the Board. 

38.  In this Court’s recent decision in Fabio Arlyn Timogan & Ors v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office & Anor [2020] HKCA 971, 27 November 2020, at [34], it was pointed out that:

“(a) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstances of each claimant;

(b) 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;

(c) Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child[11].”

39.  In the present case, the 1^st and 2^nd applicants were represented by the same lawyer assigned by the Duty Lawyer Scheme in the screening process before the Director.  They had no legal representation at the hearing of the appeal before the Board.  The 2^nd applicant’s claim was presented by the 1^st applicant as being based on the 1^st applicant’s case.  Both the Director and the Board had not given separate consideration to the 2^nd applicant’s case or assessment of her situation if refouled.      

40.  The focus of the Board’s decision was on the 1^st applicant’s case.  It had only set out the 1^st applicant’s claim,[12] and proceeded on the basis that the 2^nd applicant’s claim was based on the 1^st applicant’s case[13].  The assessments on credibility and the risk of harm were related solely to the 1^st applicant’s case.[14]  In particular, the Board found that, even if the whole of the 1^st applicant’s claim was reliable, the risk of harm could be negated or lowered by her divorcing S, and the availability of state protection and internal relocation.  Although when assessing the torture risk, the Board had noted the 1^st applicant’s claim that both she and the 2^nd applicant would be subjected to torture by S if they were to be refouled, it relied on its assessment on the risk of harm to the 1^st applicant and concluded that the feared ill-treatment was unlikely to materialise.[15]    

41.  As pointed out in Fabio Arlyn Timogan & Ors at [45] and [46], while the lack of legal representation for an adult claimant in the appeal before the Board does not, per se, amount to procedural unfairness, different considerations apply in cases involving children claimants.  As in the case of the 2^nd applicant, children claimants who are of tender age, are unlikely to be in a position to decide on how to put forward their case and make meaningful submissions to advance their case. 

42.  In the present case, we are concerned that the 2^nd applicant’s case might not have been fully presented to the Board and that there had not been a separate consideration and assessment of her claim and her situation upon refoulement. Notwithstanding the finding of the Board that the 1^st applicant’s case was unreliable and its assessment that the risk of harm to the 1^st applicant was low, the case of the 2^nd applicant calls for a separate consideration and assessment.  For instance, there should be separate consideration of the claim that, as a child born out of wedlock, the 2^nd applicant would be subjected to ill-treatment by S and/or not accepted by her mother’s family and in Indonesia.  There should also be separate assessment of risk of harm having regard to her personal circumstances and the possibility of any child-specific risk of harm or discrimination.  

43.  Accordingly, we are of the view that it is reasonably arguable that the 2^nd applicant should have been afforded legal representation in the appeal before the Board, and that the non-availability of legal representation arguably amounts to procedural unfairness.  The 2^nd applicant’s intended judicial review is therefore reasonably arguable and enjoys reasonable prospect of success. 

G6.    Conclusion on the 2^nd applicant’s application

44.  It follows from the above discussions that it is reasonably arguable that the Judge should have given separate and further consideration to the 2^nd applicant’s intended judicial review against the Board’s decision, even though he had correctly found no merits in the 1^st applicant’s intended judicial review. 

45.  We would further point out that in the applications before the Judge, the requirements of Order 80, rule 2 of the Rules of the High Court have not complied with: see Fabio Arlyn Timogan & Ors at [57].  A next friend should have been appointed to act for the 2^nd applicant in the application for leave to judicial review, and the next friend would have to be represented by a solicitor, unless the Official Solicitor is appointed as the next friend. 

46.  In conclusion, we are of the view that it is reasonably arguable that the Judge should have extended the time for the 2^nd applicant to apply for judicial review, and the 2^nd applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review enjoys reasonable prospect of success.  We therefore allow the summons as against the 2^nd applicant and extend the time for her to appeal the decision.    

H.      Disposition

47.  We make the following orders:

(1)     The summons dated 16 July 2020 is dismissed as against the 1^st applicant.

(2)     Leave is granted to the 2^nd applicant to appeal out of time against the Judge’s decision of 9 January 2020.