RE TUMINI NEVIA SARI AND ANOTHER

CAMP 433 of 2021, [2023] HKCA 549

On appeal from [2020] HKCFI 2514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO.433 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2627 OF 2018)

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AND

(ON AN INTENDED APPEAL FROM HCAL NO. 582 OF 2020)

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(Consolidated pursuant to the Order of

Deputy High Court Judge Bruno Chan dated 8 September 2020)

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JUDGMENT

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

Introduction

1.  This is the renewed application of the 1^st applicant in both HCAL 2627 of 2018 (“HCAL 2627”) and HCAL 582 of 2020 (“HCAL 582”), the 2^nd applicant in HCAL 2627 and the 2^nd applicant in HCAL 582 for leave to appeal out of time against the decision dated 12 August 2021[1] of Deputy High Court Judge Bruno Chan (“the Judge”) refusing to extend the time for them to appeal the Judge’s earlier order dated 25 September 2020[2] which refused to give leave for them to apply for judicial review.

2.  The three applicants’ intended judicial review was directed against the decisions dated 20 June 2018 and 27 November 2019 of the Torture Claims Appeal Board (“the Board”) dismissing their respective appeal against the decisions dated 30 November 2016 and 28 March 2019 of the Director of Immigration (“the Director”) which rejected the applicants’ claims for non-refoulement protection.

3.  The 1^st applicant had lodged a written submission on behalf of herself and the other applicants in support of their application.

4.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, rule 14A of the Rules of the High Court, Cap.4A (“RHC”).

Background

5.  The 2^nd applicant in HCAL 2627 (“Hamza”) and the 2^nd applicant in HCAL 582 (“Azkayra”) are respectively the son and daughter of the 1^st applicant. They are minors born in 2016 and 2018 respectively.

6.  The 1^st applicant is a national of Indonesia aged 44. She last entered Hong Kong on 2 September 2014 and was permitted to remain to work as a foreign domestic helper. After her employment was terminated on 22 August 2015 when she was pregnant with Hamza, she overstayed in Hong Kong. On 16 November 2015, she surrendered to the Immigration Department and raised a non-refoulement claim. After the birth of her children, she raised similar claims for them.

7.  The claims of Hamza and Azkayra are based on the 1^st applicant’s claim. Their claims are based on fear of being harmed or killed by: (1) the creditor Suwinto due to the default in making repayment of a loan incurred by the 1^st applicant’s father; and/or (2) by the 1^st applicant’s father and her two elder brothers because Hamza was born out of wedlock, which has brought shame to the family and is not acceptable under the Muslim faith. The details of their claims were set out at [1] to [5], [9] to [30] of the Board’s decision dated 20 June 2018 and at [1] to [5], [9] to [40] of the Board’s decision dated 27 November 2019.

8.  In gist, the 1^st applicant came from a Muslim family in Indonesia. After leaving school in 1993, she had worked as a domestic helper in Indonesia and other countries including Malaysia, Singapore and Hong Kong. In 1995, her father took out a loan from a loan shark named Suwinto. The 1^st applicant was the main breadwinner of her family and would help to repay the loan with her earnings. In late 2011 or January 2012, due to her father’s failure to make repayment, Suwinto had threatened to kill her if she did not repay the loan for the father.

9.  While working in Hong Kong, the 1^st applicant developed a relationship with Majar Iqbal, who is a Pakistani. When she was pregnant with Hamza, her employment contract was terminated, as a result of which she was unable to remit money to her family to repay Suwinto’s loan. On 29 March 2016, the 1^st applicant gave birth to Hamza. Majar Iqbal and the 1^st applicant subsequently got married in December 2016. Azkayra was born on 17 July 2018.

The Director’s decisions

10.  The Director conducted a joint assessment of the claims of the 1^st applicant, Hamza and Azkayra. By two decisions dated 30 November 2016 and 28 March 2019, the Director rejected their claims. The first decision concerns the 1^st applicant and Hamza while the second decision relates to Azkayra. In both decisions, all the applicable grounds, namely torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6] grounds, had been considered.

The appeal to the Board

11.  The 1^st applicant and Hamza appealed the Director’s decision to the Board on 9 December 2016. An oral hearing was held on 6 March 2018, during which the 1^st applicant testified on behalf of herself and Hamza. By its decision dated 20 June 2018, the Board dismissed their appeal. Azkayra also lodged an appeal against the Director’s decision on 10 April 2019. Her oral hearing took place on 13 September 2019, at which the 1^st applicant gave evidence and answered questions from the Board on her behalf. By its decision dated 27 November 2019, the Board dismissed her appeal.

12.  In its first decision, the Board accepted that the 1^st applicant and her children might face a degree of difficulties in Indonesia due to the 1^st applicant’s status as a single mother, given that Indonesia is a highly patriarchal society and the 1^st applicant’s pregnancy with Hamza when she was not married would be viewed as outside societal norms. The situation has since been remedied by the marriage of the 1^st applicant and Majar Iqbal. The Board noted that Majar Iqbal is a Muslim and shares the same faith as the1^st applicant and her family.

13.  In its second decision, the Board further noted that Majar Iqbal wished to go with the 1^st applicant and their children if they were to return to Indonesia. Having considered the Country of Origin Information (COI), the Board was satisfied that an Indonesian woman can sponsor her husband for initially a spouse visa and eventually a permanent resident visa. The Board did not accept that the 1^st applicant’s family members or the Indonesian community would seek to harm the applicants if they return to Indonesia as a family unit.

14.  The Board did not accept that the 1^st applicant would be without the support of her family, with whom she has maintained contact. The Board also had regard to the COI on the organisational support available to single mothers in Indonesia, and found that, even if the 1^st applicant were to return without her husband, she would be regarded as a married woman and would in any event be able to access support and assistance from organizations and social programs in the country. The Board considered that any difficulties or discrimination that may occasioned to the 1^st applicant and her children did not meet the threshold of harm required for the applicable grounds[7].

15.  In relation to the loan, the Board rejected the entirety of those claims as being unreliable. Fundamentally, the Board found that there was no evidence that Suwinto, who was in fact a relative of the 1^st applicant, had ever harmed the 1^st applicant’s family, given that the loan was taken out by her father more than 24 years ago and that in all these years Suwinto has not taken any action to recoup the outstanding loan even though the principal and interest would have by now accumulated to a large amount[8].

16.  In short, the Board was not satisfied that the applicants have established entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

17.  By a Form 86 dated 21 November 2018, the applicant applied on behalf of herself and Hamza for leave to judicially review the Board’s decision dated 20 June 2018. By another Form 86 dated 9 April 2020, the 1^st applicant applied on behalf of herself and Azkayra for leave to judicially review the decision of the Board dated 27 November 2019. No grounds for seeking relief were given in either of the Form 86. In her supporting affirmations for both applications, the 1^st applicant merely stated that their lives would be in danger in Indonesia.

18.  The Judge listed both applications for an oral hearing on 8 September 2020. Given that they are based on similar set of facts and basis, the Judge ordered that the consolidation of the two applications. By a Form CALL-1 dated 25 September 2020, the Judge refused the application and gave his reasons at [11] to [15] as follows:

“11. As the facts and basis of both claims of the 1^st Applicant and her children are essentially the same, and with her consent, I made an order on 8 September 2020 that their applications be consolidated for hearing, but as noted above in the absence of any error of law or procedural unfairness in either of the Board’s decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenges of either decision of the Board.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claims is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claims.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended applications for judicial review, and I accordingly refuse their leave applications.”

19.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicants may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 9 October 2020.

20.  By a summons and an affirmation filed on 22 October 2020, the 1^st applicant applied on behalf of herself and her children for an extension of time to appeal the Judge’s decision. The Judge heard the application on 25 March 2021. By his decision handed down on 12 August 2021 ([2021] HKCFI 2323), the Judge refused the application.

The present application

21.  On 6 October 2021, the applicants filed the present summons to make a renewed application to this Court for extension of time to appeal.

22.  On 7 October 2021, the Registrar of Civil Appeals drew attention to the fact that Hamza and Azkayra are minors and should act by a next friend who is required to be legally represented, and directed that steps be taken on their behalf, including making an application for legal aid. However, no steps were taken by any of the applicants, and directions were given by the Registrar on 11 January 2022 for the appeal to be proceeded with.

Our reasons for decision

23.  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.

24.  The applicants were 13 days late when they filed the 22 October 2020 summons. We agree with the Judge that this may not be considered as a substantial delay. Like the Judge, in light of the explanation given by the 1^st applicant at the hearing before the Judge, we will focus on the merits of the intended appeal.

25.  In considering the merits 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]. Notably, 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.  In the present application, the applicants did not put forward any ground in support of their intended appeal in the summons and the 1^st applicant’s affirmation. In the written submission dated 18 January 2022, the 1^st applicant stated that she was the breadwinner of her maiden family, hence the creditor looked to her for repayment. She also stated that even though her family sent her overseas to earn money, they refuse to accept her pre-marital pregnancy and if she were to return home, they will stone her to death. She contended that it is a big error of the Director and the Board to reject their claims as three human lives are at stake.

27.  We are of the view that what has been put forward by the 1^st applicant on behalf of herself and her children do not constitute viable grounds of appeal against the Judge’s decision. Assessment of evidence and risks of harm are matters for the Director and the Board, who are the primary decision makers. The Court may only disturb their findings if it can be shown that their decisions are wrong in law, irrational or procedurally irregular or unfair. Both before the Judge and in the present application, the applicants have not pointed to any errors, irregularities or unfairness in the process before the Director or in the appeal before the Board. The general assertion that they cannot return to Indonesia for fear of harm or death was insufficient to enable the Court to review the Board’s decision.

28.  In any event, we have examined the Board’s Decisions with particular regard to the case of Hamza and Azkayra in light of this Court’s decisions in Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33].

29.  Their claims are premised fundamentally on the 1^st applicant’s claim. Although Hamza’s claim was jointly assessed with the 1^st applicant’s claim, it was clear from its decision that the Board was keenly aware of the need to assess any risk of harm that he may face as a child conceived out of wedlock if he had to go to and live in Indonesia with his mother. The Board accepted that the two of them may face some difficulties due to the status of the 1^st applicant as a single mother, but in light of the relevant COI was satisfied that organisational support would be available to them in Indonesia. The Board therefore found that any difficulties faced by Hamza (and the 1^st applicant) did not meet the threshold for non-refoulement protection under the applicable grounds[9]. This is a conclusion that the Board was entitled to make on the basis of the evidence and COI available to it. There is no basis for the Court to intervene by way of judicial review.

30.  In relation to Azkayra’s claim, it was assessed on its own although it shares the same basis as the 1^st applicant’s claim. The Board was keenly aware of the need to assess any child-specific risk of harm that she may face on return to Indonesia with the 1^st applicant. In particular, the Board was wary of the fact that her mother’s previous pregnancy was viewed as a “wrong that cannot be right” notwithstanding the subsequent marriage of her parents[10]. The Board acknowledged that any harm inflicted on her mother would have a significant psychological, emotional and financial impact on Azkayra. However, the Board did not accept that her grandparents or the Indonesian community as a whole would seek to harm her just because her mother (who has since married) has one incident of pre-marital pregnancy and her brother was born out of wedlock[11].

31.  In addition, having considered the relevant COI, the Board was not satisfied that any discrimination that Azkayra, her mother or family may suffer will amount to the level of harm required to satisfy any of the non-refoulement grounds[12]. The Board also found that even if Azkayra was to return to Indonesia without the support of her father, there was no real chance or any strong grounds to believe that she will be subjected to harm under any of the non-refoulement grounds. In our view, the Board was entitled to reach this conclusion on the basis of the evidence and the available COI before it.

32.  As to the Board’s rejection of the 1^st applicant’s claim of fear of harm to Azkayra from Suwinto over a debt incurred over 24 years ago[13], we are of the view that this was a finding reasonably open to the Board in light of the evidence and the reasons given by it.

33.  We further note that the Judge, in his decision refusing leave to apply for judicial review and the decision refusing extension of time to appeal, had been mindful of the fact that Hamza and Azkayra are minors and of the need to separately consider and examine their claims in light of the principles in Fabio. The Judge, having considered the Board’s assessment of their claims, held that the Board had properly taken into account the difficulties they might face as children and the relevant COI regarding their general situation and their access to support and assistance in the Indonesia society[14]. We are in agreement with the Judge’s reasons and conclusion.

34.  On the evidence before us, we also do not see basis for concern that there may be non-refoulement grounds relating specifically to the two minor applicants which had not been advanced to the Board or considered by it because of a lack of legal representation on their behalf before the Board.

35.  For the above reasons, we are of the view that the Judge did not err in finding the intended judicial review has no reasonable prospect of success, and in refusing leave to apply for judicial review.

36.  We will treat the non-compliance with Order 80 rule 2 of the Rules of the High Court (which requires the two minor applicants to act by a legally represented next friend) 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).

37.  As the applicants’ intended appeal against the Judge’s dismissal of the 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 6 October 2021.