RE KUMAROH AND ANOTHER

CAMP 311/2021

[2023] HKCA 71

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO. 311 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1646 OF 2018)

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J U D G M E N T

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

1.  This is the 1^st and 2^nd applicants’ renewed application for leave to appeal out of time against the decision dated 11 December 2019[1] of Deputy High Court Judge Lung (“the Judge”) refusing their application for leave to apply for judicial review.

2.  The 1^st applicant had, on behalf of both herself and her daughter, the 2^nd applicant, filed a supporting affirmation and had also lodged a written submission to support their application.

3.  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 and the affirmation and written submissions of the 1^st applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicants’ intended judicial review is against the decision dated 3 August 2018 of the Torture Claims Appeal Board (“the Board”) dismissing their appeal against the decision dated 18 November 2016 of the Director of Immigration (“the Director”) which rejected their claims for non-refoulement protection.

5.  The 1^st applicant is a national of Indonesia aged 37 years old. She first came to Hong Kong in 2007 to work as a domestic helper. She last entered Hong Kong on 21 June 2015 and was given permission to stay and work as a domestic helper. On 29 August 2015, her employment contract was terminated prematurely. She did not depart and overstayed. On 7 October 2015, she surrendered to the Immigration Department and later raised a non-refoulement claim. On 31 December 2015, she gave birth to the 2^nd applicant. On 26 April and 23 May 2016, she filed representations to raise a non-refoulement claim on behalf of the 2^nd applicant.

6.  The applicants’ claims are based on fear that they would be harmed or killed by the 1^st applicant’s parents upon their return to Indonesia, for bringing disgrace to the family due to her ritual marriage to a Pakistani man in Hong Kong and the birth of the 2^nd applicant. The 1^st applicant also claims that she would face segregation and discrimination as a divorcee and a single mother. The applicants’ claims were set out in details in [8] of the Director’s decision and [32] to [42] of the Board’s decision.

7.  In gist, the 1^st applicant claims that in 2007, she was forced by her parents into marriage with her former husband. Two months into their marriage, she decided to come to Hong Kong to work as a domestic helper in order to ease the family’s financial burden. In 2009, her husband divorced her when she refused to return to Indonesia upon his request. In January 2015, the 1^st applicant met and later developed a relationship with Mudassar Iqbal, a Pakistani non-refoulement claimant in Hong Kong. After she became pregnant, the 1^st applicant got married through religious rituals in June 2015. During her pregnancy, the 1^st applicant’s employment contract was terminated. When she disclosed her marriage to a non-Indonesian and her pregnancy to her parents, they were enraged and accused her of bringing disgrace to the family.

8.  The 1^st applicant requested for a joint assessment of her and the 2^nd applicant’s claims. She expressed concerns about her daughter having to be separated from her father as he does not have a right of abode in Indonesia. She also feared that her daughter would be subjected to segregation and discrimination by people in her community, as she was a divorced woman and a single mother.

9.  As the 1^st applicant had requested a joint assessment and further indicated that the 2^nd applicant’s claim was based on her claim, their claims were assessed together: see the Director’s decision at [2]. By his decision dated 18 November 2016, the Director rejected the 1^st and 2^nd applicants’ claims having regard to the torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds.

10.  The applicants’ appeal to the Board was heard on 27 March 2018, during which the 1^st applicant made representations on behalf of herself and the 2^nd applicant. She confirmed to the Board that the information supplied to the Immigration Department was true and she had nothing to add to it. She clarified that she knew her current husband was an asylum seeker when she became pregnant with him. She also said that it was her husband who told her to apply for asylum so that they could remain in Hong Kong with their daughter.

11.  By its decision dated 3 August 2018, the Board dismissed the appeal. The Board, while accepted that the 1^st applicant would face difficulties with her parents because of her matrimonial situation and the fact that she now has a child, doubted that her parents have any genuine intention to harm her or her daughter and did not believe that they would kill her or her daughter if they returned to Indonesia. The Board also noted it was the 1^st applicant’s intention not to return to live in her home village if she returned to Indonesia. The Board considered that it was not established that there was a well-founded fear or real risks that the applicants would be subjected to persecution, torture or ill-treatment or their right to life would be violated. The Board was further of the view that internal relocation alternatives were reasonably available, which would negate or reduce any risks of harm faced by the applicants. The Board concluded that the 1^st and 2^nd applicants failed to establish their entitlement to non-refoulement protection under any of the applicable grounds.

12.  By a Form 86 filed on 16 August 2018, the 1^st applicant applied on behalf of herself and the 2^nd applicant for leave to judicially review the Board’s decision. Other than stating in her supporting affirmation that the Board disregarded her dangerous situation, the 1^st applicant had not set out any ground for seeking relief in either the Form 86 or the supporting affirmation.

13.  The Judge heard the application at an oral hearing held on 21 June 2019, during which the 1^st applicant made submissions on behalf of herself and the 2^nd applicant. By a Form CALL-1 dated 11 December 2019, the Judge refused the application as he found the intended judicial review had no reasonable prospect of success. He gave his reasons at [12] to [16] as follows:

“12. The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her and she could read English. She understood the Hearing Bundle and the Board’s Decision herself.

13. I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

14. It is quite obvious that their facts were not challenged by the Board, which applied the appropriate laws and Convention to their case. The Adjudicator was entitled to reach the decisions.

15. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

16. The applicants fail to show that they have a reasonable chance of success in their proposed judicial review.”

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal the Judge’s decision to the Court of Appeal within 14 days after the refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 25 December 2019.

15.  By a summons and an affirmation filed on 29 June 2020[6], the 1^st applicant applied on behalf of herself and the 2^nd applicant for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on the papers, and by his decision handed down on 8 July 2021[7] refused the application.

16.  On 3 August 2021, the 1^st applicant filed the present summons to make a renewed application on behalf of herself and the 2^nd applicant to this Court for extension of time to appeal.

17.  In deciding whether to extent time for appealing against the Judge’s decision refusing them leave to apply for judicial review, the Court has to consider: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

18.  Even if the Court does not accept that an applicant’s explanation for delay is reasonable, the Court would examine if there are merits in the intended appeal. Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted. When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; and Re Muhammad Shehbaz [2020] HKCA 256.

19.  In assessing the merit of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

20.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

21.  The applicants were almost six months late, which is a serious delay in the context of the statutory limit of 14-days. In her affirmation in support of the application made to the Judge, the 1^st applicant explained that she did not receive any letters regarding her case. She said she has changed address and had informed the court about her new address at the hearing in June 2019. We noted from the court record that the Form CALL-1 was sent to the 1^st applicant’s new address and had not been returned undelivered by the Post Office. In light of this and since the 1^st applicant did not elaborate on the circumstances she came to learn of the Judge’s dismissal of their application for judicial review, we do not find she had satisfactorily explained the serious delay. In any event, what is more important is the merits of the intended appeal, to which we now turn.

22.  Neither the summons nor the supporting affirmation has set out any grounds in support of the intended appeal. In the written submission dated 22 November 2021, the 1^st applicant stated that as she is a Muslim and Indonesia is a Muslim country, the public would kill her and the baby as she is regarded a sinner and her daughter the fruit of her sin.

23.  What was asserted in the written submission is a new ground that has not been raised before the Director, the Board or the Judge. The applicants’ case before the Director and the Board was that they feared harm from the 1^st applicant’s parents and discrimination in the community in the 1^st applicant’s home village. The fear of being killed by the general public due to the Muslim faith practised by the 1^st applicant and in Indonesia was raised for the first time in the written submission. It is well established law that this Court would not permit new ground which is fact-sensitive to be raised for the first time on appeal: Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at [38]. It is therefore not open to the 1^st applicant to put forward in the intended appeal the assertion that she fears harm from the general public due to religious reason.

24.  Other than the new ground, the 1^st applicant has not pointed to any errors, irregularities or unfairness in the process before the Director or in the appeal before the Board. This being the case, the 1^st applicant’s intended appeal does not have any prospect of success.

25.  In the case of the 2^nd applicant, we are mindful of the fact that she is a minor and has not been legally represented in the proceedings below and in this Court, as required by Order 80 rule 2 of the Rules of the High Court. We have examined the Board’s decision with particular regard to her case in light of the need to separately consider whether her claim had been properly assessed and determined by the Board in a manner sufficient to meet the high standards of fairness required, and to see whether there are matters that may support potential minor-specific non-refoulement bases that had not been made to the Board owing to lack of legal representation: Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33].

26.  In the present case, as noted above, the 2^nd applicant’s claim was founded on the basis of the 1^st applicant’s claim, namely, risks of harm from the 1^st applicant’s parents and discrimination by the community in the 1^st applicant’s home village. On the 1^st applicant’s own case, however, she has no intention to return to her home village is she and her daughter were to be refouled. Therefore, the risks of harm and discrimination to the 2^nd applicant will not materialise. In addition, although the 2^nd applicant’s claim was assessed together with the 1^st applicant, the Board had considered and assessed whether there was any risk of harm that she might face if she were sent to live in Indonesia with the 1^st applicant. The Board, as it is entitled to find on the basis of the evidence before it, did not accept that the 1^st applicant’s parents had intention to carry out harm to, or kill, the 1^st and 2^nd applicants.

27.  As to the new assertion in the written submission of risks of harm from the general public, the 1^st applicant has given no elaboration, details or evidence to support the assertion. As noted above, this was not even raised before the Judge.

28.  Having regard to the evidence and all the circumstances of the case, we are satisfied that there are no non-refoulement grounds relating specifically to the 2^nd applicant that had not been advanced to, or considered by, the Board owing to lack of representation. We are of the view that the 2^nd applicant’s intended judicial review and her intended appeal against the Judge’s decision do not enjoy any reasonable prospect of success. Accordingly, we will treat the non-compliance with Order 80 rule 2 and the 2^nd applicant’s lack of legal representation as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.

29.  As the applicants’ intended appeal against the Judge’s dismissal of their application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 3 August 2021.