RE SULIYATI

CAMP 266/2023, [2024] HKCA 193

On Appeal From [2023] HKCFI 502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 266 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 404 OF 2019)

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JUDGMENT
(ROLLED-UP HEARING)

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

1)  Renewed application for extension of time to appeal

1.  On 12 February 2019, the applicant issued her application for leave for judicial review by Form 86 in HCAL 404/2019 out of time (‘the judicial review application). The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 19 September 2017 which refused the applicant and her son’s appeal/petition against the Director’s Decision of 11 April 2017 (which was also an application concerning the applicant and her son). Deputy High Court Judge Bruno Chan (‘the Judge’) refused to grant extension of time for leave to appeal for judicial review and dismissed the application on 3 April 2023. The Judge held that as the applicant only placed her own name not including her son’s name as the only intended applicant in her Form 86, the Court treated the applicant’s application before him as if it were only the applicant herself applying.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 17 April 2023). Being out of time for over one and a half months, the applicant took out an application on 5 June 2023 before the Judge requesting an extension of time to appeal (‘the extension application’). The Judge on 25 July 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 1 August 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  Briefly stated, the applicant is an Indonesia national. According to immigration records, the applicant last arrived in Hong Kong from Macau to work as a foreign domestic helper in October 2013. In January 2014, her employment contract was prematurely terminated. She did not depart as was required and overstayed. In January 2015, the applicant raised a non-refoulement claim. In September 2016, the applicant gave birth to a son in Hong Kong out of a relationship with a local Nepalese man. In October 2016, the applicant requested for non-refoulement protection for her and her son. The applicant alleges that if they are returned to Indonesia they would be harmed or killed by one Ahmad because of the applicant’s former husband’s default on a loan.

3)  The Director’s Decision

6.  The Director decided against the non‑refoulement claim of the applicant and her son on 11 April 2017. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant and her son appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’). The Board dismissed their appeal against the Director’s Decision on 19 September 2017 (‘the Board’s Decision’). In the Board’s Decision, the Board having considered all the evidence held that the applicant was not a witness of truth, and she had manufactured her non‑refoulement claim. The applicant’s written claims were different from her evidence before the Director and/or the Board. The inconsistencies in the applicant’s evidence included the terms of the loan itself. Although her written evidence showed that it was herself and her mother who signed the loan documents, the applicant altered this evidence twice during the hearings by first saying that it was her former husband who entered into the loan, then subsequently saying that it was her former husband and mother who entered into the loan. The applicant could not explain the inconsistencies other than saying that she was forgetful. The Board also held that it was incredible that the creditors would still pursue the applicant after so many years. The applicant failed on all applicable grounds. In any event, the Board held that even if the applicant’s claims were accepted, they were relating to a monetary issue only. The Board had also considered the appeal of the son as well. It considered the Indonesia Law on citizenship and found that the applicant and the son would not have difficulties if they were to return to Indonesia without the support of the father.

5)  Decisions of the Judge

8.  In his decision dated 3 April 2023, the Judge held that the applicant failed to put forward any proper ground for her intended challenge. There was no error of law or procedural unfairness in the Board’s decision. Further, the Judge held that the applicant did in the past both before the Director and before the Board include her son in claiming non‑refoulement protection but somehow filed her Form 86 naming only herself as the applicant. In the absence of the applicant at the hearing before the Judge, it would not be appropriate for the Court to speculate one way or another, and the Judge dealt with her application as if it were only the applicant applying for extension of time for leave for judicial review.

9.  In his decision dated 25 July 2023, the Judge stated that the Court’s decision was sent to the applicant on the same day to the applicant’s last reported address without being returned. The applicant was unable to put forth any valid ground to challenge the Judge’s decision. The application for extension of time to appeal was dismissed.

6)  Legal principles

10.  In considering whether to extend time for appeal, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

(4)  prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

11.  Under Order 53, rule 4(1) of the Rules of High Court, the applicant had three months to appeal the Board’s decision.

12.  The Board’s decision was handed down on 19 September 2017. The deadline for the appeal was 18 December 2017. The applicant was over 13 months late when she filed her extension of time to appeal application on 13 February 2019. The applicant did not provide explanation for the delay.

(2)  Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, she stated that she did not get any decision from the High Court on time. She said she now has two baby boys. It is not possible for her to bring her illegal babies to Indonesia which is a Muslim country. If she were to return to Indonesia, her family would kill her. In her written submission, she referred to the factual and procedural background of her case. She expressed her dissatisfaction with the decisions below.

14.  One problematic issue in this case is the absence of the applicant’s first son from the judicial review application when both the applicant and the first son were parties to the decisions of the Director and the Board.

15.  In Sri-Wahyuningsih [2023] 4 HKLRD 320, this Court has stated when the applicant had previously represented her children in a non‑refoulement claim before the Director and the Board but only chose to name herself in Form 86, the Judge who deals with the application should ascertain from the applicant the position regarding the children. In the present case, the Judge had actually directed a hearing of the judicial review application but the applicant was absent at the hearing. According to the Court file, the notice of hearing sent to the applicant by post was not delivered. It was returned by the Post Office to Court after the hearing but before the Form CALL‑1 was handed down. The Judge did not refer to this in the Form CALL‑1, probably because this matter was not brought to his attention. We note that the applicant had attended the hearing of the extension application but the issue concerning the first son was apparently not canvassed.

16.  We have directed that a rolled‑up hearing be held for this application because we would like to ascertain from the applicant why the first son was not included in the application. The applicant attended Court and explained that it was her intention to include the first son in the application but as she did not know how to fill in the application form and does not know English, she asked someone to fill in the form for her. We accept what the applicant said about the omission. We are of the view that it was most unlikely that the applicant had decided not to include her son in the judicial review application because in her supporting affirmation (Exhibit 5) she actually stated that she was the one taking care of the son because his father did not take care of him. The judicial review application should have been amended to include the applicant’s first son and be considered on the basis that it is an application made by both the applicant and her first son.

17.  In the circumstances, in order to ensure that the first son’s case could be properly canvassed we will grant extension of time to the applicant to appeal the Judge’s decision. We are also of the view that the appeal should be allowed.

18.  Accordingly, we direct that the applicant shall issue and file a notice of appeal within 14 days. Upon receipt of the notice of appeal, we will make an order formally allowing the appeal, setting aside the orders below and remitting the case to the Judge for reconsideration of the applicant and her son’s application.