RE LILIK SUMRIYAH AND OTHERS

CAMP 561/2021

[2023] HKCA 193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO.561 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 920 OF 2018)

__________________________

__________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  This is the 1^st to 3^rd applicants’ renewed application for leave to appeal out of time against the decision[1] of Deputy High Court Judge Bruno Chan (“the Judge”) given on 27 April 2021 refusing to extend the time for them to apply for judicial review and dismissing their application for leave to apply for judicial review.

2.  The 1^st applicant has lodge a written submission on behalf of herself and the 2^nd and 3^rd applicants, who are her minor sons, in support of their application.

3.  Under Order 59 rule 14A (1) of the Rules of the High Court, Cap.4A (“RHC”), this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the summons and the affirmation and written submissions of the 1^st applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicants’ intended judicial review is directed against the decision dated 6 February 2018 of the Torture Claims Appeal Board (“the Board”) dismissing their appeal against the decisions of the Director of Immigration (“the Director”) dated 1 September 2016 and 11 July 2017 which rejected the applicants’ claim for non-refoulement protection.

Background

5.  The 1^st applicant is a national of Indonesia aged 35. Between 2006 and May 2011, the 1^st applicant worked as a domestic helper in Hong Kong. In February 2015, the 1^st and 2^nd applicants entered Hong Kong and were permitted to remain for seven days as visitors. They overstayed and surrendered to the Immigration Department on 9 June 2015. On 9 June 2015, the 1^st applicant raised a non-refoulement claim for herself and the 2^nd applicant. On 18 February 2016, the 1^st applicant gave birth to the 3^rd applicant. She also raised a non-refoulement claim for him. In the non-refoulement form completed on 8 August 2016, the 1^st applicant asked for a joint assessment.

6.  The applicants’ claim is based on fear of harm or being killed by the 1^st applicant’s brother, who disapproved of the inter-cultural marriage between the 1^st applicant and the father of the 2^nd and 3^rd applicants who is a Bangladeshi. According to the 1^st applicant, she was forced by her brother to work in Hong Kong as a foreign domestic worker, during which time she met a Bangladeshi man. They developed a relationship and married in mid-2007 under Islamic law but their marriage was not officially recognised in Hong Kong. In 2011 when she was pregnant, her employer terminated her employment, and she returned to Indonesia in May 2011. Her brother was furious on learning of her marriage and pregnancy. He locked her up, denied her food and water, and physically and verbally abused her. She managed to escape and later gave birth to the 2^nd applicant in November 2011. Nothing eventful happened until 2013, when her brother found out their whereabouts and on two occasions tried to poison the 2^nd applicant. As a result, the 1^st applicant brought the 2^nd applicant to leave Indonesia for Hong Kong in February 2015. The details of their claims were set out at [5] to [50] of the Director’s first decision and at [12] of the Board’s decision.

The Director’s decisions

7.  By two decisions dated 1 September 2016 and 11 July 2017, the Director rejected the applicants’ claim. The first decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds, and the further decision covered the BOR 2 risk[5] ground. In gist, the Director found there were no substantial grounds for believing that the claimed risk of harm from the 1^st applicant’s brother is real and foreseeable due to the absence or low intensity and frequency of past ill-treatment, and that their problems were private family disputes without any official involvement. Having considered the relevant Country of Origin Information (COI), the Director also found that state protection is available and that internal relocation is a viable option available to them.

The Board’s decision

8.  The applicants’ appeal to the Board was heard on 28 December 2017, during which the 1^st applicant had testified and answered questions from the Board. By its decision dated 6 February 2018, the Board dismissed the appeal.

9.  Primarily, for the reasons set out in [16] to [69] of the decision, the Board found the 1^st applicant’s evidence incredible and rejected her case about her brother’s abuse, his attempt to poison the 2^nd applicant elder son, which was contradicted by the medical reports produced by her. The Board also did not accept her claims of being rejected by her family due to her violation of the Islamic faith, or that her family would harm or kill her and her sons for this reason. The Board pointed out, that while the COI indicates the existence of social stigma attached to single women and the discrimination faced by children of unmarried women, it does not suggest that such discrimination is experienced by all single and unmarried mothers and illegitimate children; nor is such discrimination prevalent throughout Indonesia. Further, the Board noted that in the four years he lived in Indonesia, the 2^nd applicant had access to education and medical treatment, and there is no evidence of social or official discrimination or harm from anyone. The Board concluded that the applicants have not established their entitlement to non-refoulement protection under any of the applicable grounds.

Application for leave for judicial review

10.  By a Form 86 filed on 24 May 2018, the 1^st applicant applied on behalf of herself and the 2^nd and 3^rd applicants for leave to judicially review the Board’s decision. Under Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose. The applicants’ Form 86 was about two weeks late. The applicants had provided no ground for seeking relief or any explanation for the delay.

11.  The Judge dealt with the application on the papers. By a Form CALL-1 dated 27 April 2021, he refused the application. The Judge considered that the delay of two weeks was not substantial and was not critical to the application despite the lack of explanation for the delay. However, he found the intended challenge against the Board’s decision had no merits, as the Board had effectively and specifically considered the case made by the 1^st applicant as well as the two minors individually and separately. He did not find any error of law or irrationality or procedural unfairness in either of the decision of the Director or the Board, nor any minor-specific risk relating to the two minors which had not been advanced to, or considered by, the Board because of the lack of legal representation. His reasons are set out at [15] to [22] as follows:

15. However, as her children A2 and A3 are both minors now at aged 10 and 5 respectively and not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, it would be necessary to separately consider and examine whether their claims had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which may not have been properly advanced to the Board due to lack of legal representation in their appeal before the Board, when the proper approach of which have recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 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.

16. hile the claims of A2 and A3 were premised fundamentally on their mother’s claim that they would be harmed by her brother, as noted above there were evidence from A1 of her brother’s attempts to poison A2, as well as her fear of risk of discrimination against both A2 and A3 by the Muslim community or the Indonesian government due to their illegitimacy and/or from a mixed marriage upon their return to Indonesia, which had been properly and separately considered by the Board as set out in details in paragraphs 44 – 90 of the decision.

17. ssentially the Board upon hearing the evidence of A1 did not find her to be a credible witness and rejected her claim of being disapproved by her family or her brother of her relationship with her Bangladeshi husband or her children born out of wedlock or their illegitimacy, or of any evidence of her children being discriminated by anyone or in any way whatsoever in Indonesia or based on reliable COI for the reasons as noted above, and that it also found as follows regarding their option of relocation within Indonesia:

“90. Taking into account the Applicants’ cumulative circumstances, their particular profiles, and all the relevant matters, including but not limited to their age, status, including the Applicant’s claimed intercultural relationship, marriage, and the children’s backgrounds, their past experiences, skills, education, and country conditions, I find that it would be reasonable, safe and not unduly harsh for the Applicant’s to relocate to another area in Indonesia.”

18. In so doing the Board had effectively and specifically considered the case made in support of the claims of the mother as well as her children individually and separately, and rejected each of them in the way they were advanced for their appeal. In this respect I note that A2 was only 7 when the Board heard the appeal, and hence it is not a case where he could have given any evidence in relation to the alleged poison attempts in Indonesia, nor in the case of A3 who was then only 2 years old and had never lived in Indonesia that he could have given any instruction to his lawyer if he were legally represented in his appeal before the Board, or for that matter in these proceedings.

19. 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.

20. In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim 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.

21. 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 irrationality 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’ claim. Nor do I see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to A2 or A3 which had not been advanced to the Board or considered by it because of their lack of legal representation before the Board.

22. For these reasons I am not satisfied that there is any prospect of success in the intended application for judicial review including those of the children, for whom I will treat the absence of legal representation in these proceedings as a mere irregularity as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended judicial review, and in the absence of any good reason for their delay, I refuse to extend time and accordingly dismiss their leave application.

Application for extension of time

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant 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 11 May 2021.

13.  By a summons and an affirmation filed on 22 July 2021, the 1^st applicant applied on behalf of herself and the 2^nd and 3^rd applicants for an extension of time to appeal the Judge’s decision. The Judge heard the application on 24 November 2021. By his decision handed down on 8 December 2021[6], the Judge refused the application.

14.  On 14 December 2021, the applicants filed the present summons to make a renewed application to this Court for extension of time to appeal. On 4 May 2022, the Director of Legal Aid refused the legal aid applications made by the 1^st applicant for the 2^nd and 3^rd applicants.

Discussion

15.  In deciding whether to extend 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.

16.  The applicants were more than ten weeks late when they filed the 22 July 2021 summons. At the hearing before the Judge, the 1^st applicant explained that she received the decision late as it was sent to her previous address. The Judge noted from the court records that the decision, which was sent to the address previously provided by the applicant, was returned through undelivered post, and it was re-sent to the applicants on 21 June 2021 upon obtaining their latest address from the Immigration Department. The Judge further pointed out that, even then, the applicants were still some two weeks late. The Judge found the applicants to be at fault for the delay in that they failed to inform the court of the change in their address in December 2020.

17.  We agree with the Judge that the applicants are under a duty to update the court of any change in their address for service, and that the delay has not been satisfactorily explained. That said, the most important consideration is the merits of the intended appeal, to which we now turn.

18.  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].

19.  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 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.

20.  In the present application, no specific ground in support of the intended appeal was put forward in the summons or in the affirmation. In the written submissions dated 30 May 2022, the 1^st applicant repeated the factual basis of their claims and asserted that the applicants will be harmed or killed by her brother if they return to Indonesia.

21.  The mere repetition of the case put forward by the 1^st applicant does 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 reiteration of the applicants’ account is insufficient to enable the Court to review the Board’s decision, particularly when the Board has entirely rejected the 1^st applicant’s evidence before the Board as being materially inconsistent with the account presented to the Director.

22.  In any event, we have examined the Board’s decision with particular regard to the case of the 2^nd and 3^rd applicants, having regard to this Court’s decisions in Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33]. Although the 2^nd and 3^rd applicants’ claims were premised fundamentally on the 1^st applicant’s claim, it is clear from its decision that the Board was keenly aware of the need to assess any risk of harm they may face as children born out of wedlock if they have to go to and live in Indonesia with their mother. The Board acknowledged that there is COI indicating the existence of social stigma and discrimination faced by single mothers and illegitimate children, however, the COI does not reveal any widespread or prevalent risk of harm to the 2^nd and 3^rd applicants. The Board also noted that the 2^nd applicant had access to education and medical treatment when he lived in Indonesia and there is no evidence that he had suffered from any social or official discrimination or harm from anyone.

23.  The Board also took into account the fact that it was possible for the applicant and the 2^nd and 3^rd applicants’ father to officially register their marriage in Indonesia, thus removing the perception that they are illegitimate children born out of wedlock and the family could live together in Indonesia. This is a view that the Board was entitled to reach based on the evidence and COI available to it. We see no basis for disturbing the Board’s reasoning in this regard.

24.  We also note that at the interview with the Director and at the hearing before the Board, the applicants had made reference to Article 14 of the Hong Kong Bill of Rights Ordinance (“HKBORO”) and Articles 3(1), 22 and 37 of the Convention on the Rights of the Child (“CRC”). In considering these articles, the Board had regard to the established position[7] of the immigration reservations in the CRC, section 11 of the HKBORO, which effectively preclude persons not having a right to enter and remain in Hong Kong, such as the applicants, from relying on the rights under the CRC, and that the rights under HKBORO, include Article 14, are not absolute and non-derogable. The Board held that the rights relied on by the applicants were not engaged and not applicable to the applicants. Furthermore, as held by the Court of Appeal in the case of Otad Jenny Bergonio & Anor v Torture Claims Appeal Board & Anor [2021] HKCA 408 at [25], the provisions under the CRC has not been incorporated into any statute in Hong Kong and are thus not enforceable in Hong Kong. In our view, the Board was entitled to so find. We further observe that both in the applications made to the Judge and in the present application, the applicants did not put forward any grounds in relation to these articles.

25.  In short, we are of the view that the Board had properly assessed the applicants’ claim based on the evidence and the available COI before it, and had duly given reasons for rejecting their claims. We agree with the Judge that the 1^st applicant’s intended judicial review has no prospect of success, and there is no basis to extend the time for applying for judicial review. It follows that the 1^st applicant’s intended appeal against the Judge’s refusal to extend the time for applying for judicial review and his dismissal of the application for leave to apply for judicial review has no prospect of success.

26.  We are also satisfied that there are no non-refoulement grounds relating specifically to the 2^nd and 3^rd applicants that had not been advanced to, or considered by, the Board owing to lack of representation. We are of the view that the 2^nd and 3^rd applicants’ intended judicial review and their intended appeal against the Judge’s decision do not enjoy any reasonable prospect of success.

27.  Accordingly, we will treat the non-compliance with Order 80 rule 2 of the Rules of the High Court[8] and the 2^nd and 3^rd applicants’ lack of legal representation 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.

28.  As the applicants’ intended appeal against the Judge’s decision has no merits, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 14 December 2021.