RE SITI CHOIRIYAH AND ANOTHER

CAMP 223/2023, [2025] HKCA 374

On Appeal From [2022] HKCFI 2997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 223 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1121 OF 2019)

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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.  On 12 June 2023, the applicants took out a summons to reapply for extension of time to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 29 September 2022 ([2022] HKCFI 2997)  (“the Leave Decision”), refusing to grant extension of time and dismissing their application for leave to apply for judicial review.  On 3 February 2023, the Judge refused to grant the applicants an extension of time to appeal against the Leave Decision ([2023] HKCFI 195)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 6 September 2017, dismissing the appeal against the decision of the Director of Immigration (“the Director”)  17 May 2017 rejecting the applicants’ non-refoulement claims.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to 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 (“the Mother”)  is the mother of the 2^nd applicant (“the Daughter”).  The Mother last entered Hong Kong as a foreign domestic helper on 7 January 2007.  Her contract was terminated prematurely on 19 December 2007 and she overstayed since 3 January 2008.  She was arrested by the police for overstaying on 3 December 2008 and served two-months’ imprisonment.  On 21 January 2009, she raised a torture claim which was rejected on 24 August 2011.

5.  She gave birth to the Daughter on 4 November 2012.  The Mother was later arrested by the police for failing to report recognizance.  On 9 September 2013, she lodged a claim under Cruel, Inhuman, Degrading Treatment and Punishment to the Immigration Department, which was taken as a non-refoulement claim and assessed on all applicable grounds other than the ground of torture risk.  On 15 June 2015, she also lodged a non-refoulement claim on behalf of the Daughter.  Their claims were made on the basis that, if refouled, they would be harmed or killed by (1)  the Mother’s ex-boyfriend, Iwan Siswanto; and (2)  the Muslim community.  They also feared that, as a single mother and an Afro-Indonesian child, they would be discriminated.  They were also afraid that they would be separated from the family members who were in Hong Kong.  Details of the applicants’ claim have been summarised by the Judge at [4] - [7] of the Leave Decision.

6.  By a Notice of Decision dated 17 May 2017 (“the Director’s Decision”), the Director rejected the applicants’ non-refoulement claim on all applicable grounds including BOR2 risk[1], BOR3 risk[2], and persecution risk[3].  The Director also rejected the Daughter’s non-refoulement claim on the risk of torture[4].

7.  The applicants appealed against the Director’s Decision to the Board.  After consideration of the evidence, the Board considered that it was not necessary to hold an oral hearing.  By the Board’s Decision, the Board dismissed the applicants’ appeal.  The relevant findings made by the Board were summarised by the Judge at [9] of the Leave Decision:

“9. By way of the Director’s Decision, the Director dismissed their claims for reason that the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i)  the absence or low intensity and frequency of past ill-treatments from Iwan indicated an unlikelihood of future risk of harm [30]-[31]; (ii)  there was no evidence that Iwan was still looking for the 1^st applicant [32]; (iii)  the absence or low intensity and frequency of past ill-treatments from the Muslim community also indicated an unlikelihood of future risk of harm [33]; (iv)  the country of origin information (‘COI’)  showed that Indonesia practiced religious freedom and would punish any person who acted with discrimination [34]-[36]; (v)  the COI also showed that the government would provide assistance to the single mothers [37]-[38]; (vi)  the claim that the 2^nd applicant would face discriminations due to her appearance was the 1^st applicant’s bare assertion [39] and the COI indicated that the level of risk of discrimination due to the 2^nd applicant’s appearance was low [40]-[41]; (vii)  state protection would be available to them [42]-[48]; and (viii)  internal relocation was a viable alternative [49]-[54]. In addition, the Director rejected the 1^st applicant’s assertion that family reunion was not available if they were refouled [55]-[57].”

THE JUDGE’S DECISION

8.  On 26 April 2019, the applicants filed their Form 86 to challenge against the Board’s Decision.  By that time, the applicants were almost one year and five months late in taking out their application.  Both applicants acted in person and the Mother acted on behalf of the daughter.[5]  In both the Form 86 and the supporting affidavit[6], no ground of review was advanced by the applicants.

9.  The applicants attended the oral hearing before the Judge on 4 July 2022.  An Indonesian interpreter was also present to provide language assistance.

10.  By the Leave Decision, the Judge refused to grant extension of time and dismissed their application for leave to apply for judicial review.  His reasons were stated at [15] - [22] of the Leave Decision as follows:

“15. As mentioned in paragraph 1, the applicants’ application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicants’ case.

16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ 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).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she planned to marry the father of her child. He had obtained permission from the Director as a refugee. She asked for more time.

18. It is clear that the Director and the Board had considered the 2^nd applicant’s case separately, identifying the issues relating to the 2^nd applicant, which satisfies the requirements set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971.

19. The 1^st applicant has raised no valid ground to challenge the Board’s Decision.

20. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21. The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

22.  I shall treat the 2^nd applicant’s application without legal representation before this Court as an irregularity under Order 2 of the RHC. I therefore 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.”

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 applicants within the 14-day period.

12.  On 6 January 2023, the applicants applied by summons for an extension of time to appeal against the Leave Decision.  By that time, they were almost three months late in taking out their intended appeal.

13.  On 3 February 2023, the Judge refused the applicants’ application for extension of time to appeal.  The Judge held that they provided no good reason for their delay.  Their application also had no merit and the arrangement for the Mother to marry the Daughter’s father was not a valid reason to challenge the Leave Decision.  As there was no realistic prospect of success in their intended appeal, their application for extension of time to appeal against the Leave Decision was dismissed.

THIS APPLICATION

14.  By a summons and a supporting affirmation filed on 12 June 2023 in the Court of Appeal, the applicants reapplied for extension of time to appeal against the Leave Decision.  In the summons, they only asserted that they failed to receive the sealed order, the Form CALL-1 and the Judgment within 14 days from 29 September 2022 as the documents were lost in post, and that they could only get those documents after searching the court file.

15.  Contrary to the directions of the Registrar of Civil Appeals dated 19 September 2023, the applicants failed to lodge their written submissions.  Notwithstanding the directions of the Registrar of Civil Appeals dated 20 September 2023, it appears that the Daughter did not apply for any legal representation.

DISCUSSION

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  The Court of Appeal’s approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicants.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  In our view, a delay of almost three months is substantial.  Although the applicants alleged that they did not receive the Form CALL-1 and the court’s order, this is only a bare allegation.  According to the court record, the Form CALL-1 and sealed order were both sent to the applicant’s last known address, which was the same address as stated in their summons filed on 6 January 2023 and their summons before this court dated 12 June 2023.  The Form CALL-1 and the sealed order were not returned undelivered by the Post Office.  In the circumstances, there is no good reason for their substantial and inordinate delay.

21.  As to the Mother’s appeal, she also fails to provide any proper ground of appeal.  She fails to point out with specific particulars as to how the Judge erred in the Leave Decision.  All her allegations are bare, vague and general and do not constitute proper grounds of appeal.  Accordingly, her appeal must fail on this basis alone.

22.  As to the Daughter’s appeal, the Court’s approach in considering a minor’s claim for non-refoulement protection is set out in Re Jasvir Singh [2021] HKCA 53, at [30] - [33]:

“30.  First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf.  In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents.  In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] - [35].

31.  Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board.  See Fabio Arlyn Timogan at [47] - [54].

32.  If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC.  Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials[7], with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board.  See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

33.  Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

23.  In the present case, the Daughter’s case was premised fundamentally on the claim of the Mother.  Given that the Board found on the evidence that the Mother’s evidence was unreliable, there is no factual basis to support the Daughter’s claim.  The Board also held that in any event, internal relocation was available.  In any event, as seen from the Board’s Decision at [23] - [32], the Board had considered the applicants’ respective cases separately, and we do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the Daughter but had not been advanced to the Board or considered by it.  More importantly, the Mother and Daughter fail to advance any ground of review in support of their application for judicial review against the Board Decision.  They also fail to raise any intended ground of appeal against the Leave Decision.  We see no basis to interfere with the Leave Decision.

24.  Accordingly, there is no prospect of success in the applicants’ intended appeal.  It is thus futile to grant the applicants any extension of time to appeal against the Leave Decision.

DISPOSITION

25.  The application for extension of time to appeal is refused, and the applicants’ summons taken out on 12 June 2023 is dismissed.

26.  For the avoidance of doubt, we shall treat the non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the Daughter’s application a nullity.