RE SAUDAH AND ANOTHER

CAMP 499/2021

[2022] HKCA 1393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 499 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2387 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  By a summons dated 4 November 2021, the applicants applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 14 July 2021. By that order the Deputy Judge refused the applicants’ application for extension of time to appeal ([2021] HKCFI 1978)  (“the EOT Decision”)  against his earlier order dated 13 May 2020, refusing to grant the applicants extension of time and dismissed their application for leave to apply for judicial review ([2020] HKCFI 786)  (“Leave Decision”).

2.  The intended judicial review was directed at the decisions of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 4 July 2018 and the decision of the Director of Immigration (“the Director”)  dated 1 March 2017 rejecting their claims for non-refoulement protection (“the Director’s Decision”).

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 3 August 2014 and was permitted to remain for employment as foreign domestic helper until 20 November 2015 or two weeks after termination of her contract, whichever was earlier.  Her employment contract was prematurely terminated on 1 September 2015 and she overstayed in Hong Kong since 15 September 2015.  On 25 November 2015, she surrendered to the Immigration Department.  On 15 December 2015, she lodged a non-refoulement claim.  On 28 December 2015, she gave birth in Hong Kong to her son, the 2^nd applicant.  On 13 June 2016, she lodged a non-refoulement claim on behalf of the 2^nd applicant.

5.  In essence, the basis of the applicants’ non-refoulement claim was that they would be harmed by the 1^st applicant’s husband owing to a money dispute concerning his debt to a loan shark in 2010 and further, that she got pregnant with her boyfriend in Hong Kong and gave birth to the 2^nd applicant. Factual details of their claim were summarised by the Deputy Judge at [6] - [7] of the Leave Decision.

6.  By a Notice of Decision dated 1 March 2017, the Director rejected the applicants’ non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

7.  The applicants then appealed against the Director’s Decision to the Board.  On 27 March 2018, the applicants attended an oral hearing before the Board where the 1^st applicant gave evidence and also on behalf of the 2^nd applicant.  On 4 July 2018, the Board dismissed their appeal.

8.  In essence, the Board found that she had not been ill-treated by her husband and the threat of the loan shark to hurt her and her other daughter was only verbal in nature.  The Board also found the 1^st applicant’s case was just a domestic dispute and that the threats from her husband were also verbal in nature.  The Board further found that the 1^st applicant had no contract with her husband and did not know his whereabouts and that he also did not call her after he came to know that she had given birth to the 2^nd applicant.  The Board also considered that state protection and internal relocation would be available to the applicants if they returned to Indonesia.  Having assessed the evidence, the Board considered that the applicants failed to substantiate their claim on all applicable grounds and dismissed their appeal.

The Leave Decision

9.  On 29 October 2018, the 1^st applicant, acting in person and also on behalf of the 2^nd applicant, filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The applicants did not specify any ground of review in their Form 86.  In her supporting affirmation, the 1^st applicant only stated that the Immigration Department disregarded their dangerous situation.

10.  By the Leave Decision, the Deputy Judge refused the applicants’ application for leave to apply for judicial review.  His reasons were set out in detail at [15] - [21] of the Leave Decision:

“DISCUSSION

The Director’s Decision

15. 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.

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

17. 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.’

18. The applicants’ application for leave to apply for judicial review of the Director’s Decision therefore fails in limine.

The Board’s Decision

19. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. There is no evidence to show that the Board had committed any error in the finding of the fact or in the application of the laws in the case.

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 leave to apply for judicial review is late and it has no reasonable prospect of success, I refuse to extend time for them to apply for leave to apply for the intended judicial review. Accordingly, I dismiss their application.”

The EOT Decision

11.  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.

12.  On 31 August 2020, the applicants filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, they were over three months late with their intended appeal.  In her supporting affirmation, the 1^st applicant only stated that she did not know the legal procedures and law.

13.  By the EOT Decision, the Deputy Judge noted that the applicants were unable to state in what respect the Board had erred in its decision.  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

14.  By a summons and the 1^st applicant’s supporting affidavit filed on 4 November 2021, the applicants applied for leave to appeal against the EOT Decision.  In the summons and the 1^st applicant’s supporting affidavit, she only claimed that she was not aware as to how to appeal as such her application was late.  No intended ground of appeal was specified in the summons or her supporting affidavit.

15.  Given that the 2^nd applicant is a minor, by the directions made by the Registrar of Civil Appeals on 10 November 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 14 February 2022, this Court proceeded to determine the present summons based on the available materials.

16.  Contrary to the directions made by the Registrar of Civil Appeals on 14 February 2022, the applicants did not lodge any written submissions in support of their present application.

Discussion

17.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

18.  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].

19.  We consider that the applicants’ delay of over three months as substantial and they simply failed to give any good reason for their delay.  Mere ignorance of the deadline as asserted is not a good reason for the 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].

20.  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].

21.  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.

22.  The applicants have not provided any particulars or shown any error in the Leave Decision.  Accordingly, as the applicants have failed to advance any ground of appeal, their intended appeal is a nonstarter and must fail on this alone.

23.  That said, it appears from the Leave Decision and the EOT Decision that the Deputy Judge did not consider the 2^nd applicant’s position, who is a minor, separately from the 1^st applicant, 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 irregularity, as we will further explain below, nothing of substance turns on this point in the present case.

24.  In the present case, 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[5], there was no evidence that might give rise to any concern that there might 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.

25.  In particular, the 2^nd applicant’s claim was mainly premised on the ground that he may be threatened or harmed by the 1^st applicant’s husband as he was a child born out of wedlock.  As the Board found on the evidence that the 1^st applicant’s husband had not contacted her even after he knew that she had given birth to the 2^nd applicant and she did not know the current whereabouts of her husband; that the threats to her in the past by him and the loan shark were verbal in nature; and further, that state protection and internal relocation would be available to the applicants, it was open for the Board to find that the 2^nd applicant also failed to substantiate his claim and dismiss his appeal.

26.  As the Court of Appeal 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, this application has no merit and the applicants have failed to raise any viable ground of appeal against the Leave Decision.

28.  For the above reasons, the applicants’ summons dated 4 November 2021 is dismissed, with the 2^nd applicant’s lack of legal representation treated as an irregularity without rendering the proceedings a nullity.