SUSIANA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 190 /2023, [2024] HKCA 1042

On appeal from [2023] HKCFI 379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 190 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2357 OF 2018)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  On 10 February 2023, Deputy High Court Judge To dismissed the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicants’ non-refoulement claim[1].

2.  On 13 March 2023, the applicants filed a summons for extension of time to appeal against the said decision. The summons was dismissed by the judge on 26 April 2023[2].

3.  On 15 May 2023, the applicants filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The 1^st applicant is a national of Indonesia. She first started working as a foreign domestic helper in Hong Kong in 2007. She last entered Hong Kong on 14 November 2010. Her employment was prematurely terminated on 24 June 2011, but she did not leave Hong Kong and subsequently overstayed. She surrendered to the Immigration Department on 11 September 2015. She gave birth to her daughter (the 2^nd applicant) on 27 September 2015. The 1^st applicant lodged a non-refoulement claim for herself on 23 November 2016 and for the 2^nd applicant on 24 July 2017. Their claims were made on the basis that, if refouled, they would be harmed or killed by the 1^st applicant’s husband (as the 1^st applicant did not remit money to him) and the village people in Indonesia (as the 2^nd applicant was born out of wedlock).

The decisions of the Director and the Board

5.  By a Notice of Decision dated 28 August 2017, the Director of Immigration (“the Director”) rejected the applicants’ claims on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicants appealed against the Director’s decision to the Board. They attended the hearing before the Board on 10 May 2018. The Board found that the 1^st applicant’s evidence lacks credibility because there are significant contradiction and inconsistencies. In particular, the Board did not accept that the applicant’s husband will pursue the 1^st applicant for financial support and/or cause her physical harm. The Board further held that the 1^st applicant has the option of reporting her husband to the authorities and pursuing relevant assistance if he does cause her any difficulty. The Board also did not accept that the 2^nd applicant would face discrimination from the village people and that there would be difficulty in obtaining relevant documents for her school enrolment in Indonesia. The country of origin information shows that Indonesian law recognises children born out of wedlock from an Indonesian mother as citizens of Indonesia and Indonesian law supports a principle of non-discrimination. Furthermore, the Board noted there are authorities in Indonesia which have taken steps to prevent discrimination against unmarried mothers or women in difficult domestic situations. In addition, the Board found that the applicants have the alternative of internal relocation if they were to experience difficulties in Indonesia. The Board concluded that the applicants’ claims have not been substantiated and dismissed the appeal on 9 August 2018.

The intended judicial review

7.  On 25 October 2018, the applicants filed a Form 86 and an affirmation in HCAL 2357/2018 to seek leave to bring judicial review against the Board’s decision. In the supporting affirmation, the 1^st applicant stated that they cannot return to Indonesia because the villagers would not accept them as the majority are very conservative Muslims, and the 2^nd applicant would face discrimination as she would be considered illegitimate.

The judge’s decision

8.  DHCJ To dealt with the leave application on paper as the applicants did not request for an oral hearing. The judge held that the Board had considered all the harms separately and decided the applicants’ claims separately according to their own personal circumstances and not as one composite claim. The judge also found no error of law or procedural unfairness at any stage of the non-refoulement proceedings and the Board’s decision is not Wednesbury unreasonable or irrational. As there is no realistic prospect of success in the proposed judicial review, the judge dismissed the leave application on 10 February 2023.

Grounds of intended appeal

9.  The 1^st applicant only stated the reasons why she cannot return to Indonesia or go to other countries with the 2^nd applicant in her written submissions, without stating any grounds of appeal against the judge’s decision.

Analysis and disposition

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicants may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 10 February 2023 and the applicants were late by 17 days when they took out the summons at the court below on 13 March 2023. The 1^st applicant explained that she did not receive the judgment from the court within time as she did not provide her new address to the court. As pointed out by the judge in the decision dated 26 April 2023[7], the applicants’ address as stated in their summons is the same as the address to which the Order and Form Call-1 were sent. The applicants have still provided the same address in their present summons. Regardless of whether there has been any change of address, it is the duty of a litigant to give the court an address to which correspondence or notice can come to his or her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15). In these circumstances, the 1^st applicant’s explanation cannot justify their delay.

12.  Where delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The 1^st applicant did not put forward any valid grounds against the judge’s refusal of the leave application and she failed to demonstrate that the judge was wrong in dismissing the application.

15.  It is necessary for the court to consider the position of the 2^nd applicant separately. She is a minor and has not been legally represented in these proceedings, as required under Order 80, Rule 2 of the Rules of the High Court (Cap 4A): Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

16.  In the proceedings at the court below, the 1^st applicant had attempted to apply for legal aid on behalf of the 2^nd applicant but the application was rejected by the Director of Legal Aid on 24 May 2022. On 28 August 2023, the Registrar of Civil Appeals had directed that the minor applicant should act by a next friend and must act by a solicitor. No steps have been taken by the 1^st applicant to comply with Order 80 rule 2 of the Rules of the High Court for the appointment of a next friend for the 2^nd applicant. Notwithstanding this, the 2^nd applicant’s application may be allowed to stand as the court has discretion under Order 2 rule 1 of the Rules of the High Court to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar [2021] HKCA 124 at §27.

17.  The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(1)  Non-refoulement claims by minor, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such, having regard to the personal circumstances of the minors;

(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 does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

18.  From the analysis set out in the Board’s decision, it is clear that the Board had sufficiently and specifically considered the 2^nd applicant’s claim. In particular, the Board had specifically considered the alleged difficulties and discrimination the 2^nd applicant may face in Indonesia as she was born out of wedlock. There is also no evidence to refute the Board’s findings that internal relocation is possible.

19.  Furthermore, there is nothing to indicate that the merits of the 2^nd applicant’s claim or any underlying matter that may support minor-specific non-refoulement grounds had not been adequately explored before the Board and the judge due to the lack of legal representation.

20.  Giving the matter close and anxious scrutiny, there is no reasonable prospect of success in the intended judicial review of the 2^nd applicant. The non‑compliance with Order 80, rule 2 can be treated as a mere irregularity and the 2^nd applicant’s application for extension of time to appeal should be dismissed notwithstanding that she has not been legally represented.

21.  For the above reasons, we refuse to extend time to appeal against the judge’s decision of 10 February 2023 and dismiss the summons filed on 15 May 2023.