Khomariyah Bt Suryat Tukijan v. Director of Immigration

CAMP 163/2021

[2021] HKCA 1310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 163 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 154 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Written Submissions: 2 July 2021

Date of Judgment:  20 September 2021

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JUDGMENT

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Hon Chow JA (giving the decision of the Court):

INTRODUCTION

1.This is a renewed application for an extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 16 June 2020 refusing to grant leave to the applicant to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 4 August 2017.  By that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 November 2016 rejecting her (and her minor daughter’s) non-refoulement claims.

3.Having considered the applicant’s summons and affirmation dated 14 May 2021 and her written submissions dated 2 July 2021, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The applicant is an Indonesian national.  She claims that if refouled to Indonesia, she and her daughter would be harmed or killed by Muslim villagers in her home village for giving birth to a child out of wedlock.  The full details of her claim were set out in the decisions of the Director and the Board and summarised by the Deputy Judge in Form CALL-1 dated 16 June 2020 at [1] to [5].[1]

DIRECTOR’S DECISION

5.By a Notice of Decision dated 8 November 2016, the Director rejected the applicant (and her daughter)’s non-refoulment claims on all applicable grounds, including torture risk[2], BOR 2 risk,[3] BOR 3 risk[4], and persecution risk[5].

6.In his decision, the Director took into account all relevant circumstances of their claims and found no substantial grounds for believing that there would be any real risk of the applicant and her daughter being harmed by the Muslim villagers in her home village upon return.  There was no evidence of any threats or risk of harm from those villagers other than the applicant’s own speculation and hearsay from her parents.  The Director also found that there was evidence to demonstrate that the Indonesian government and NGOs in Indonesia had provided assistance and protection to women in such situation, and there were reasonable internal relocation alternatives in Indonesia with a large population of 258 million people spread across a vast territory of more than 1.9 million square kilometres.

BOARD’S DECISION

7.The applicant and her minor daughter appealed against the Director’s decision to the Board.  She attended an oral hearing before the Board on 5 July 2017.  On 4 August 2017, the Board dismissed her appeal.

8.Considering the applicant’s evidence, the Board accepted that the applicant might have given birth to two children out of wedlock in Hong Kong, but had significant concerns about her credibility regarding her reason for refusing to return to Indonesia.  The Board found reliable country of information evidence to show that the Indonesian government and other organisations provided help and shelter for persons in similar situations.  The Board also came to the view that social stigma did not amount to any applicable risks that would warrant non-refoulment protection in Hong Kong for her or her daughter.

THE DEPUTY JUDGE’S DECISION

9.The applicant (for herself only) filed a Form 86 on 2 February 2018 to apply to judicially review the Board’s decision.  In her supporting affirmation of the same date, she stated that she was the mother of two children born in Hong Kong and she did not want to be separated from her family, so she asked that her claim be reconsidered.[6]

10.The application for leave to judicially review the Board’s decision was more than three months late.

11.The Deputy Judge refused the application in his decision dated 16 June 2020,[7] and gave his reasons at [13] to [17] of the Form CALL-1 as follows:

“13.  In the Applicant’s case, a delay of three months cannot be said to be insignificant or insubstantial, for which she did not provide any explanation, and hence I am unable to see any good or valid reason for her delay.

14.  As for the merits of her intended application, as held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant, as the Director’s decision will have been superseded by the Board’s decision, and hence it is not open to the Applicant to challenge the Director’s decision by way of judicial review.

15.  As for her intended challenge of the Board’s decision, as noted above the Applicant did not put forward any ground or identify any error in law or procedural unfairness or irrationality in the decision, or even any particulars or elaboration as to why the decision may be considered as unfair or unreasonable. In the absence of any error of law or procedural unfairness in her process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  In the premises and having considered the Board’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her significant delay, I accordingly refuse to extend time and dismiss her leave application.”

APPLICATION FOR EXTENSION OF TIME TO APPEAL

12.On 5 October 2020, the applicant made an application for an extension of time to appeal against the Deputy Judge’s refusal of leave to apply for judicial review.[8]  The application for extension of time was refused on 18 March 2021 by the Deputy Judge.  He did not accept the applicant’s explanation for the late filing of the application and also held that the intended appeal was without merit:

“4.   In the applicant’s case, a delay of more than 3 months must be considered as substantial or excessive, for which she explained through her Pakistani husband, as she claimed not to know anything about her case and that everything was prepared and processed by her husband for her, that she never received the decision in the mail, and that it was later when she reported to the Immigration Department on her recognisance when she was informed of the decision, but by then she was already out of time with her intended appeal.

5.  The court record however shows that the decision was sent on the same day to the applicant’s last reported address as the same stated in her present application without being returned through undelivered post, and in the absence of any corroborating evidence for her bare assertion, I am not satisfied that the applicant has provided any good reason for her serious delay.

6.  More importantly, nor did she put forward any 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 her summons, and in her supporting affirmation she merely repeated her claim and put forth various grounds or complains against the Director or the Board which appeared to have been copied from some pro former statement commonly used in this type of applications but which are wholly irrelevant to her own case, and in any event should have been raised in her leave application and too late for the purpose of her present application now before me, while at the hearing of her summons she merely repeated her claim that her life would be in danger in her home country. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in her intended appeal.

7.  I should note that the applicant had also by a letter dated 23 October 2020 requested for leave to include her minor daughter as the 2nd Applicant in her present application but whom she did not include in her Form 86 for leave to apply for judicial review. While I accepted that in both her non-refoulement claims before the Director and the Board, she did include her minor daughter as the second applicant based on her own claim, but the applicant somehow did not do so in her Form 86 or supporting affirmation for judicial review, and at the hearing she blamed the omission on her Pakistani husband whom she claimed was responsible for preparing all her documents. Since the decision had only dealt with her own claim and not her daughter’s, it is procedurally not possible or necessary to include her daughter in her present application, and so I refused her request but with an advice to file another Form 86 separately for her daughter if she so wishes, albeit that she would be way out of time by now.

8.  In the premises, as regard the applicant’s present application for leave to file her own notice of appeal out of time, for the reasons given it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.”

13.By summons dated 14 May 2021, the applicant renewed her application for an extension of time to appeal before this Court.

14.In her affirmation dated 14 May 2021, the applicant gave a new explanation for her delay, namely, that she did not have money to pay the court fees.

15.In her written submissions lodged on 2 July 2021, the applicant repeated the basis of her non-refoulement claim.  She claimed that the Board failed to make sufficient enquiries and that the Board dismissed her appeal without any reason, and if refouled, her life and that of her family would be in peril.

LEGAL PRINCIPLES

16.When considering whether to extend the time for appealing against a decision refusing to grant leave to apply for judicial review, the court will have regard to (1) the length of the 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.  Even if an applicant’s explanation for the delay is not accepted, the court would still examine if the intended appeal has merit.

17.The general principles regarding an appeal in a non-refoulement judicial review case were most recently summarised in Re Mohammed Asgar [2021] HKCA 1239 at [17]-[18].  In short:

(1)   The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board and/or in the process by which the decision was made.

(2)   In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge considering the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  This court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review.

DISCUSSION

18.As observed by the Deputy Judge, the court record shows that the decision refusing to grant the applicant leave to apply for judicial review was sent on 16 June 2020 to the applicant’s last reported address.[9]  The applicant’s explanation that she did not receive the decision was no more than a bare assertion.  The Deputy Judge was entitled to hold that the Applicant had failed to give any reasonable explanation for the delay in bringing the intended appeal.  Such delay was serious and substantial.[10]

19.Nonetheless, this Court will consider the merits of the intended appeal.

20.This Court will only reverse the decision of the Deputy Judge refusing to grant leave to apply for judicial review if the applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

21.The applicant has not shown any such errors or raised any viable grounds of appeal in her summons, affirmation or written submissions.  There is no prospect of success in the applicant’s intended appeal.

DISPOSITION

22.The application for extension of time to appeal is refused, and the applicant’s summons of 14 May 2021 is dismissed.

The Applicant, acting in person