RE SULEKHAH AND ANOTHER

HCAL 466/2018

[2021] HKCFI 635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 466 OF 2018

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D E C I S I O N

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1.  On 27 July 2020 I refused to extend time to the late application of the applicants (an Indonesian mother formerly employed as a foreign domestic helper and her minor daughter born in Hong Kong out of an affair with another man) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing their appeal regarding their non-refoulement claim upon finding no good reason for their significant delay, that none of the grounds put forward by them reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in their intended application.

2.  The applicants now by a summons issued on 9 October 2020 seek extension of time to appeal against that decision, as the 14-day period for them to file their appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A expired on 10 August 2020, and hence they were late by about 2 months with their intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicants’ case, a delay of 2 months must be considered as substantial, for which the 1^st applicant explained at the hearing of the summons that she never received the decision in the mail, and that it was only later when she reported to her recognizance that she was informed by her immigration officer of the decision, but by then she and her daughter were already out of time with their intended appeal.

5.  The 1^st applicant did not however provide any evidence to corroborate her bare assertions, and as the court record shows that the decision was sent on the same day to the applicants’ last reported address without being returned through undelivered post, I am not satisfied that they have provided any good reason for their delay.

6.  More importantly, nor did they put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in their summons or affirmation, and at the hearing of their summons the 1^st applicant merely repeated their claim that they cannot return to Indonesia for fear of harm from her husband due to her affair in Hong Kong which led to the birth of the 2^nd applicant but without identifying any error in the decision.

7.  In considering the prospects of their intended appeal, I am mindful of the fact that the 2^nd applicant, a minor born on 24 March 2016 and now aged 4, was not legally represented in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, nor was she in her appeal jointly with the 1^st applicant before the Board, and hence it would be necessary to separately consider and examine whether her claim had been properly determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see if there are matters which may support potential minor-specific non-refoulement bases in her case but had not been properly advanced to the Board due to lack of legal representation in her appeal, with the proper approach of which have recently been considered by the Court of Appeal (Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, and in Re Jasvir Singh & Others [2021] HKCA 53 (Lam VP and Au JA) which held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

8.  As stated in my decision, the non-refoulement claim first raised by the 1^st applicant after giving birth to the 2^nd applicant in March 2016 was based on her fear of being harmed or killed by her husband upon return to Indonesia over her extra-marital affair with another man in Hong Kong, and the claim of the 2^nd applicant was premised fundamentally on her mother’s claim, of which the Board did separately consider specifically to her circumstances and which it rightly rejected for the reasons set out at [88] of its decision, and of which as noted in my decision the applicants failed to put forth any ground for their intended challenge, nor did they identify any error of law or irrationality or procedural unfairness in their process before the Board or in its decision.

9.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse their application for extension of time to appeal, and dismiss their summons.