RE SITI PATIMAH AND ANOTHER

CAMP 235/2024, [2025] HKCA 780

On an intended appeal from [2024] HKCFI 2412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO. 235 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1898 OF 2019)

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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 27 September 2024[1] of Deputy High Court Judge Lung (“the Judge”)  refusing to extend the time for them to apply for judicial review and dismissing their application for leave to apply for judicial review[2].

2.  The applicants’ intended judicial review is against the decision dated 7 January 2019 of the Torture Claims Appeal Board (“the Board”)  dismissing their appeal against the decision dated 23 January 2018 of the Director of Immigration (“the Director”)  which rejected their claims for non-refoulement protection.

3.  Having considered the summons and the affirmation, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A.

Background

4.  The 1^st and 2^nd applicants are mother and daughter.

5.  The 1^st applicant is a national of Indonesia aged 42. She last arrived Hong Kong on 23 August 2014 and was granted permission to remain as a foreign domestic helper. When her employment contract was prematurely terminated on 31 July 2014, she did not depart and has since overstayed. On 2 February 2015, she applied to the Immigration Department for an extension of stay by falsely declaring that her employment contract was terminated upon its expiration on 1 February 2015. She was subsequently prosecuted and convicted of the offences of making false representations to the Immigration Department and breach of conditions of stay, and sentenced to 9 months and 2 weeks of imprisonment.

6.  On 29 June 2016, the 1^st applicant gave birth to the 2^nd applicant.  The 2^nd applicant’s father is a Pakistani man named Mohammad Naqash. The 1^st applicant had separated from him in 2018.

7.  In February 2017, the 1^st applicant made a non-refoulement claim for herself and on behalf of the 2^nd applicant.

8.  The applicants’ claims are based on the fear that they would be harmed or killed by (i)  the 1^st applicant’s husband (“Kamandi”), (ii)  a moneylender, and (iii)  her friend Firman Ali. The 1^st applicant also fears that her daughter would be subjected to discrimination in Indonesia because of her mixed ethnicity. The applicants’ claims were set out in detail in [7] of the Director’s decision and [6] of the Board’s decision.  

9.  In gist, the 1^st applicant and Kamandi were married in 2009 and have a daughter in Indonesia. The 1^st applicant claims that a loan was taken out in 2003 under their names for an investment in a property agency business which had since collapsed. Since 2005 she had worked in Hong Kong to repay the loan and later to support the family, but Kamandi thought that she had kept money for herself because she did not meet his demand for money. She therefore fears that Kamandi will harm her if she returns home.  She also fears the creditor will harm her as the loan remains unpaid after her employment was terminated in 2014, and Kamandi has absconded. The 1^st applicant further fears being pursued by Firman Ali because Kamandi had stolen money from him and had been assaulted by him as a result.

10.  In the case of the 2^nd applicant, the 1^st applicant says that while her family knew about her existence, Kamandi does not know about it. She claims it will be dangerous if he finds out she has a child by another man. She also fears that the 2^nd applicant will face discrimination in Indonesia because of her mixed ethnicity.

The Director’s and the Board’s decisions  

11.  The 1^st and 2^nd applicants’ claims were jointly assessed by the Director. By a decision dated 23 January 2018, the Director rejected the applicants’ claims having regard to the torture risk[3], BOR 3 risk[4], BOR 2 risk[5], and persecution risk[6] grounds.  

12.  The applicants’ appeal to the Board was heard on 27 August 2018. The 1^st applicant attended the hearing on behalf of herself and the 2^nd applicant (who was absent)  and answered questions from the Board with the assistance of an interpreter.

13.  By its decision dated 7 January 2019, the Board dismissed the appeal.  The Board found the 1^st applicant was not a witness of truth, having regard to the internal inconsistency of her account and the little detail she was able to provide. The evidence regarding the loan and the sequence of events which followed was found to be vague, limited and confusing[7]. The lack of reference and inconsistent account provided by the 1^st applicant regarding Firman Ali led the Board to believe that her fears were mainly concerned with the moneylender[8].  The Board, while accepting that violence against women in Indonesia is prevalent, found on the available country of origin information (COI)  that the government is committed to making systematic changes through laws, policies and coordinated services for victims thereby providing sufficient protection to the 1^st applicant should her husband threaten her with harm.[9]

14.  The Board further assessed a wide range of COI relating to the issue of discrimination and social exclusion potentially faced by the 1^st applicant as a single mother and by the 2^nd applicant as a mixed-race child born out of wedlock, and concluded that while they may face some stigma and discrimination such as social exclusion in Indonesia, the discrimination and the perceived harm have not risen to the level of persecution or the severity required for non-refoulement protection under any of the applicable grounds[10].  In particular, the Board found that there is COI indicating that the 2^nd applicant’s birth can be registered with the Indonesian authorities, upon the provision of Hong Kong birth records and supporting documents to confirm the name of the father of the child. The registration will enable the 2^nd applicant to access appropriate services offered by the government[11]. There are also measures in place in Indonesia to assist repatriated citizens to reintegrate into the society, such that the applicants will be able to sustain a livelihood in the country with the government’s assistance and their own family network.  For these reasons, the Board concluded that the 1^st and 2^nd applicants have failed to establish their entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decisions

15.  By a Form 86 filed on 15 April 2019[12], the 1^st applicant applied for leave to judicially review the Board’s decision.  At the hearing of the application on 21 August 2024 (see [17] below), the Judge granted leave to the 1^st applicant to amend the Form 86 to add the 2^nd applicant as an applicant to the application.

16.  Under Order 53 rule 4(1)  of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose. The Form 86 was about 10 days late. Other than stating in her supporting affirmation that she wanted to reject the Board’s decision, the 1^st applicant had not set out any ground for seeking relief or any explanation for the delay.

17.  The Judge heard the application at an oral hearing held on 21 August 2024, which was attended by the applicants.  By a judgment dated 27 September 2024, the Judge refused to extend the time for applying for judicial review and refused the applicants’ application. He gave his reasons at [23] to [31] as follows:

“23. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for 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 putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

24. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

25. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. I asked the 1^st applicant what child specific issues that she wanted to raise for my consideration as they were not represented before the Board. The 1^st applicant said that she wanted her daughter to finish her study in Hong Kong.

26. 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.”

27. For the reasons given above, the Board did not accept the 1^st applicant’s evidence on the facts of her case. In any event, state protection is available to her if she returns to Indonesia. As to her daughter, the Board had separate consideration for her and it rejected the 1^st applicant’s allegation that she will be discriminated in Indonesia. The Board further considered that the government and non-government agencies in Indonesia will give the mother and the daughter support and assistance if they return to Indonesia.

28. The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it. Before this Court, the 1^st applicant only said that she wanted her daughter to finish her study in Hong Kong, which is not a valid reason to refute the Boards’ findings of the fact.

29. The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review of the Board’s Decision.

DISPOSITION

30. I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

31.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rending the 2^nd applicant’s a nullity.”

Applications for extension of time to appeal

18.  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 11 October 2024.  

19.  By a summons and an affirmation filed on 14 October 2024, 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 21 November 2024[13] refused the application.

20.  On 2 December 2024, the 1^st applicant filed the present summons on behalf of herself and the 2^nd applicant, which we take to be a renewed application to this Court for extension of time to appeal.

Our reasons for decision

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

22.  Even if the Court does not accept that an applicant’s explanation for delay is reasonable, the Court will 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.

23.  The applicants were 3 days late. In her affirmation in support of the application made to the Judge, the 1^st applicant apologised for the delay and stated that she did not receive the decision. We note from the court record that the Form CALL-1 was sent to the applicants’ last known address and has not been returned undelivered by the Post Office.  Nevertheless, since it is a short delay, we will focus on the merits of the intended appeal, to which we now turn.

24.  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].

25.  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.  

26.  The applicants have not in their summons or in the affirmation provided any grounds in support of the intended appeal, other than stating that they disagreed with the decision of the Judge. No written submission was lodged despite the directions given by the Registrar of Civil Appeals on 13 March 2025.

27.  We are of the view that the applicants have not provided any viable grounds of appeal against the Judge’s decision, let alone grounds that have a real prospect of success.

28.  In the case of the 1^st applicant, she has not pointed to any errors, irregularities or unfairness in the process before the Director or in the appeal before the Board. The Board did not accept her evidence and on that basis rejected her claim that she would be harmed by her creditor or her husband. The Board was also not satisfied that the perceived discrimination or hardship would reach the level of severity required for non-refoulement protection. On the materials before us, there is no proper basis to say that its conclusions are wrong or irrational. This being the case, the 1^st applicant’s intended appeal does not have any prospect of success.

29.  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].  

30.  Even though the 2^nd applicant’s claim was jointly assessed with her mother’s claim, the Board was keenly aware that she is a child of mixed ethnicity and was born out of wedlock. The Board has separately assessed the non-refoulement grounds specific to her claim, namely the issue of discrimination and livelihood upon repatriation, the rights of illegitimate children under the existing legal framework, as well as whether and how she would be able to access the services of the Indonesian government[14]. The Board found that through registration of the birth of the 2^nd applicant with the Indonesian government, she could access the appropriate services offered by the government. The Board has also assessed on the basis of the COI that there are also measures in place to assist repatriated citizens to reintegrate into the society, so that the applicants would be able to make a living in Indonesia with the government’s assistance and their own family network.  We are of the view that the Board had properly assessed the 2^nd applicant’s claim based on the evidence and the available COI before it, and had duly given reasons for rejecting her claim. The applicants have also not made any challenge to the Board’s assessments and findings.

31.  We also do not see any material that may give rise to a concern that there are potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on her behalf.

32.  In the premises, the 2^nd applicant’s intended judicial review is not reasonably arguable and the Judge did not err in refusing her application for leave to apply for judicial review.

33.  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.  

34.  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 2 December 2024.