Re Tumini Nevia Sari and Another

HCAL 2627/2018 and
HCAL 582/2020
(Consolidated)

[2021] HKCFI 2323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2627 OF 2018

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 582 OF 2020

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(Consolidated pursuant to the Order of

Deputy High Court Judge Bruno Chan dated 8 September 2020)

Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 25 March 2021

Date of Decision:  12 August 2021

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D E C I S I O N

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1.On 25 September 2020 I refused to grant leave to the 1^st applicant (“A1”) and her 2 minor children, Iqbal Muhammad Hamza and Iqbal Malaika Arsyla Azkayra (“Hamza” and “Azkayra”) to apply for judicial review of the decisions of the Torture Claims Appeal Board (“Board”) in dismissing their appeals regarding their non-refoulement claims upon finding none of the grounds put forward by them reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in their intended application.

2.The applicants now by a summons issued on 22 October 2020 seek extension of time to appeal against that decision, as the 14-day period for them to file their appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 9 October 2020, and hence they were late by 13 days with their intended appeal. 

3.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the applicants’ case, a delay of 13 days may not be considered as substantial, for which A1 explained at the hearing of the summons that she cannot read or understand English and did not know how to appeal, and therefore had to seek help for the decision to be explained to her and to prepare the necessary documents for appeal, but by then she was already out of time to file the notice of appeal,

5.The court record shows that the decision was sent on the same day to the applicants’ last reported address without being returned through undelivered post, but given their relatively insubstantial delay, I propose to focus on the prospect of their intended appeal.      

6.A1 however in her supporting affirmation just stated that she does not agree with the decision as not proper without providing any details or elaborations as to how it is so, nor did she put forward any other proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in the summons or in her affirmation, and at the hearing she could merely repeat her claim that she and her children would still be in danger in her home country.

7.I am of course mindful of the fact that Hamza and Azkayra are both minors now aged 5 and 3 respectively but were not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, and that 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 required in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in their appeal before the Board, as the proper approach to which have recently been considered 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, CACV 32/2020, 27 November 2020, which held 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.

8.In the present case, the claims of Hamza and Azkayra were premised fundamentally on A1’s claim of risk of harm from the creditor of her father over his loan problem and/or from her father due to his anger over her relationship with her boyfriend in Hong Kong which led to the birth of Hamza and Azkayra out of wedlock, of which the Board did find, as noted in my decision, that situation had since been remedied by their subsequent marriage in Hong Kong, while any circumstances which may be specific to Hamza and Azkayra including any problem or difficulties that A1 may have in raising them in her home country as a single mother in the unlikely event of their father not accompanying them in her return to Indonesia had all been properly taken into account by the Board in its consideration of the relevant COI as well as actual childcare supports from A1’s family and the Indonesian governmental and NGO as detailed in paragraphs 42 – 60 of the Board’s decision of 27 November 2019 that I do not find any prospect of success in the appeal of Hamza or Azkayra either.

9.As such the absence of legal representation for Hamza and Azkayra in their leave application for judicial review can be treated 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 application for judicial review.                        

10.In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly, I refuse the application of all three applicants for extension of time to appeal, and dismiss their summons.

The 1^st applicant appeared in person, for her own and on behalf of the 2^nd applicant in HCAL 2627/2018 and the 2^nd applicant in HCAL 582/2020