RE RINA WATININGSIH AND ANOTHER

CAMP 250/2021

[2022] HKCA 1386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 250 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1336 OF 2018)

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J U D G M E N T

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

1.  By a summons dated 12 July 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 17 June 2021. By that order the Deputy Judge refused the applicants’ application for extension of time to appeal ([2021] HKCFI 1651)  (“the EOT Decision”)  against his earlier order dated 30 March 2021, dismissed the applicants’ application for leave to apply for judicial review ([2021] HKCFI 782)  (“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 23 February 2018, dismissing the applicants’ appeal against the decisions of the Director of Immigration (“the Director”)  respectively dated 1 June 2016 and 30 June 2017 rejecting their claims for non-refoulement protection (collectively referred as “the Director’s Decisions”).

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 came to Hong Kong to work as a foreign domestic helper on 30 October 2013.  Her contract terminated prematurely on 3 September 2014 and she had overstayed in Hong Kong since 18 September 2014.  On 13 June 2015 she was arrested by the police for overstaying.  On 14 June 2015, she gave birth to her daughter, the 2^nd applicant, in Hong Kong.  On 7 December 2015, she lodged a non-refoulement claim on behalf of herself and the 2^nd applicant on the basis that they would be harmed or killed by the 1^st applicant’s father’s loan creditors due to her father’s default in loan repayment and that the 2^nd applicant would be harmed or killed by the 1^st applicant’s husband if they returned to Indonesia.  Factual details of their claim were summarised by the Deputy Judge at [3] - [5] of the Leave Decision.

5.  By a Notice of Decision dated 1 June 2016, the Director rejected the applicants’ non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR3 risk[2] and persecution risk[3].  By a Notice of Further Decision dated 30 June 2017, the Director rejected the applicants’ non-refoulement claim on the basis of BOR2 risk.

6.  The applicants then appealed against the Director’s Decisions to the Board.  On 25 January 2018, the 1^st applicant attended an oral hearing before the Board and she acted in person and also gave evidence on behalf of the 2^nd applicant.  On 23 February 2018, the Board dismissed their appeal.

7.  In essence, the Board found that the 1^st applicant’s evidence as unpersuasive and did not accept that her father had borrowed money from any loan creditors.  The Board also found that in relation to the alleged threats from her husband, the 1^st applicant’s evidence was indirect, vague and unpersuasive. Accordingly, the Board did not accept that the 1^st applicant’s husband wished to harm or kill the applicants for any reasons and did not accept that the applicants were ever threatened by him. The Board had also considered the 2^nd applicant’s case and found that there was no credible evidence to indicate that children born out of wedlock or their mother would be subjected to physical harm or that the social stigma would give rise to the level of persecution or CIDTP or torture.  There was also no real risk of the applicants facing harm or discrimination that would constitute persecution, CIDTP or torture.  The Board also found that the 1^st applicant would be able to find employment an accommodation to support herself and the 2^nd applicant if they were to return to Indonesia.  As such, 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

8.  On 9 July 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.  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.

9.  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] - [20] of the Leave Decision:

“15. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, held:

‘14 (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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher[2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board[2018] HKCA 152; Re Rizwan alias Rizwan Gulistan[2018] HKCA 162; Re Lakhwinder Singh[2018] HKCA 246 and Re Masoom Parvez[2018] HKCA 163.’

16. The Board rejected the factual evidence of the applicant, she has no factual basis in support of her claim. This will also apply to her daughter’s case as well.

17. I note that the applicant daughter is a minor and she did not have legal representation before the Board. The Court of Appeal in Re Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021 held that if the Board had not considered the applicant daughter’s case separately, the matter should be remitted to the Board for re-consideration. However, if the Board had properly dealt with the applicant daughter’s case, the court may dispose of the application, treating the absence of legal representation before the Board as a mere irregularity.

18. The Board had considered the applicant daughter’s case separately. Her case relied primarily on the facts of the applicant.

19. I have, however, taken on board the following factors:

(1)  The applicant and the applicant daughter were legally represented by lawyer under the Duty Lawyer Scheme when their applications were processed by the immigration officer. At that stage, the legal representative should have taken into account of the applicant daughter’s special circumstances, if any, in Indonesia and should have put forth to the immigration officer for his consideration.

(2)  Since the Board did not accept the applicant’s evidence on the facts of her case, there is no factual basis in support of her case. The applicant daughter’s case relies upon her mother’s case, therefore, she also does not have any factual basis in support of her claim.

(3)  In the circumstances, it is difficult to imagine how legal representation before the Board would assist the applicant daughter’s case.

(4)  The grounds of opposition do not have any particulars of specifics. They are not useful for this application.

(5)  In Peter Po Fun Chan (2007)  10 HKCFAR 676 §14, the Court of Final Appeal held that leave should not be granted for application for judicial review if there is no realistic prospect of success.

CONCLUSION

20. Since the applicants’ joint application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss their joint application.”

The EOT Decision

10.  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.

11.  On 17 May 2021, 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 one month late with their intended appeal.  In her supporting affirmation, the 1^st applicant only stated that she did not understand English and the legal procedure and that owing to financial difficulties, it was difficult for her to seek proper help.  She further claimed that she had given birth to another daughter who was a resident of Hong Kong and she would need to take care of her.

12.  By the EOT Decision, the Deputy Judge noted that the applicants were unable to stay in what respect the Board had erred in its decision.  In relation to the submission that she would need to take care of her younger daughter, this ground was not previously raised before the Board or the Court and was thus irrelevant for the purpose of these proceedings.  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

13.  By a summons and the 1^st applicant’s supporting affirmation filed on 12 July 2021, the applicants applied for leave to appeal against the EOT Decision.  In the 1^st applicant’s supporting affirmation, she only claimed that she disagreed with the decision of the authorities and the Court and that she did not understand English.

14.  Given that the 2^nd applicant is a minor, by the directions made by the Registrar of Civil Appeals on 14 July 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 20 October 2021, this Court proceeded to determine the present summons based on the available materials.

15.  Pursuant to the directions made by the Registrar of Civil Appeals on 20 October 2021, the applicants also lodged written submissions in support of their present application.  In those submissions, they alleged that the lack of language and legal assistance before the Director in relation to their BOR2 risk assessment meant that they had no understanding of the processes or the reasons for rejecting their claim.  They also alleged that the lack of credible source of information had resulted in the authorities making groundless speculations that it would be safe for them to return to Indonesia.

Discussion

16.  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.

17.  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].

18.  We consider that the applicants’ delay of over one month as substantial and they simply failed to give any good reason for their delay.  Mere ignorance of the procedural requirements as asserted is not a good reason for the delay.  She also did not provide any evidence supporting her allegations in relation to her financial situation.  It is further noted that all the Court documents filed in this Court and the Court below were in English and clearly either she was conversant in English or that she was able to seek help from others.  In any event, 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].

19.  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].

20.  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.

21.  Applying the above legal principles, there is plainly no merit in the applicants’ application.

22.  First, the applicants have not provided any particulars or shown any error in the Deputy Judge’s Decision in refusing to grant leave to apply for judicial review.  Their complaints focused on the Director’s assessment of their non-refoulement claim on the ground of BOR2 risk, which was never raised in the Court below.  As a matter of general principle, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.  Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Accordingly, we refuse to entertain those new grounds.  Accordingly, as the applicants failed to advance any proper ground of appeal, their intended appeal is a nonstarter and must fail on this alone.

23.  Second and in any event, there was no substance in the applicants’ complaints.  It has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We noted that all of the Court documents filed by the 1^st applicant in this Court and the Court below were in English which demonstrated that she was proficient in the English language or had access to language assistance.  As they provided no additional information to the Immigration Department, the Director assessed their claim on the ground of BOR2 risk based on the materials previously submitted to the Director which were prepared with both legal and language assistance.  In the circumstances, we see no prejudice suffered by the applicants and their contentions are without substance.

24.  Third, as repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

25.  Further, although the 2^nd applicant is a minor and her position should be considered separately from the 1^st applicant, 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[4], in the present case, there is no evidence that may give rise to any concern that there may 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.  In particular, the Board gave detailed consideration to the 2^nd applicant’s own case in its decision on the grounds alleged before it: see eg, [63] - [65] of the Board’s Decision.

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, the applicants have failed to substantiate any alleged error of the Deputy Judge in the Decision, and have failed to raise any viable ground of appeal against the Leave Decision.

28.  For the above reasons, the applicants’ summons dated 12 July 2021 is dismissed, with the 2^nd applicant’s lack of legal representation treated as an irregularity without rendering the proceedings a nullity.