Re Nduk Ning and Another

CAMP 64/2021

[2021] HKCA 1678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 64 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1991 of 2018)

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Before: Hon Chu and Barma JJA in Court

Date of Judgment: 15 November 2021

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JUDGMENT

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

1.This is the 1^st and 2^nd applicants’ renewed application for leave to appeal out of time against the decision dated 19 August 2020 of Deputy High Court Judge Bruno Chan (“the Judge”) refusing their application for leave to apply for judicial review.

2.The 1^st applicant had filed an affirmation, and also lodged a written submission in support of their application.

3.Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, 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 submission 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 July 2018 of the Torture Claims Appeal Board (“Board”), dismissing their appeal against the decision dated 30 December 2016 of the Director of Immigration (“Director”) which rejected the applicants’ claim for non-refoulement protection.

5.The 1^st applicant is a national of Indonesia aged 40 years old. The 1^st applicant entered Hong Kong on 20 December 2004 and was given permission to remain to work as a foreign domestic helper. After her employment contract was terminated on 8 October 2005, she overstayed in Hong Kong. On 13 October 2006, she gave birth to the 2^nd applicant. She surrendered to the Immigration Department with the 2^nd applicant on 30 January 2007. She raised a torture claim on 30 April 2009. On 8 May 2011, the 1^st applicant registered a marriage to a Hong Kong Permanent Resident. On 7 June 2011, she withdrew her torture claim. Later on 21 June 2011, she submitted an application for change of status to dependant with a view to joining her husband in Hong Kong, which was refused on 12 July 2012. Meanwhile, on 6 September 2011, the 1^st applicant applied to re-open her torture claim and the claim was refused by the Director on 29 March 2012. Her petition against the refusal was rejected on 27 November 2012. Prior to that on 5 July 2012, the 1^st applicant gave birth to a child born out of her marriage.

6.The 2^nd applicant is now 15 years old. Her father is an Indonesian whom the 1^st applicant became acquainted in Hong Kong. He has left the 1^st and 2^nd applicants and they have lost contact of him.

7.On 2 and 3 July 2013, the 1^st applicant raised a non-refoulement claim on behalf of herself and the 2^nd applicant respectively. The 2^nd applicant’s claim is not separate from, and is dependent on the 1^st applicant’s claim. Their claim is based on fear of being harmed or killed by the 1^st applicant’s family and radical Muslims in her village and Indonesia because the 1^st applicant had given birth to a daughter born out of wedlock, rendering her liable to be stoned to death under Muslim doctrines. The details of their claim were set out in the Director’s decision at [11] and the Board’s decision at [9] to [33].

8.By his decision dated 30 December 2016, the Director rejected the 1^st applicant’s claim having regard to the persecution risk^[1], BOR 3 risk^[2] and BOR 2 risk^[3] grounds. There was no assessment on the torture risk[4] ground in view of the previous rejection of the torture claim. The 2^nd applicant’s claim was assessed as part of the 1^st applicant’s claim, and not separately assessed. The Director explained in his decision (at [2]) that this was because the 1^st applicant requested their claims be jointly considered.

9.The applicant’s appeal to the Board was heard on 23 April 2018, during which the 1^st applicant had testified and answered questions from the Board. She also informed the Board that she and her husband had separated in 2013 and she has the care of their baby daughter.

10.By its decision dated 6 July 2018, the Board dismissed the appeal. Primarily, the Board did not accept the 1^st applicant’s claim that she was estranged from her family thus lacking support should she returns to Indonesia, or that she cannot return to her home in central Java. The Board also did not find her claimed fear of violence from the radical Muslims to be credible. It pointed out, that while the country of origin information (“COI”) indicated unmarried or divorced women and their children may encounter difficulties, especially in rural Indonesia, some of the difficulties identified in the COI would not happen to the 1^st and 2^nd applicants and also the 1^st applicant’s second daughter because the two daughters already have birth certificates and will not have the problems associated with the lack of birth certificates. Further, on the basis of the COI, the Board did not accept that mothers of illegitimate children or their children face a real risk of serious harm throughout Indonesia, or that the 1^st applicant is at serious harm at the hands of radical Islamists in her home area. The Board concluded that the 1^st and 2^nd applicants have not been able to show that they are entitled to non-refoulement protection under the persecution risk, BOR 2 risk and BOR 3 risk grounds.

11.By a Form 86 filed on 20 September 2018 and amended on 24 October 2018, the 1^st applicant applied on behalf of herself and the 2^nd applicant for leave to judicially review the Board’s decision. It did not set out any ground for seeking relief. In the supporting affirmation, the 1^st applicant reiterated the basis of their claim and that the second daughter is now under her care.

12.The Judge dealt with the application on the papers. By a Form CALL-1 dated 19 August 2020[5], he refused the application and gave his reasons in [9] to [12] as follows

9. 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.

10. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

11. 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 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.

12. For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

13.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 14 September 2020[6].

14.By a summons and an affirmation filed on 21 September 2020, the 1^st applicant applied on behalf of herself and the 2^nd applicant for an extension of time to appeal the Judge’s decision. The Judge heard the application on 26 November 2020. By his decision handed down on 14 January 2021[7], he refused the application.

15.On 26 February 2021, the 1^st applicant filed the present summons to make a further application on behalf of herself and the 2^nd applicant to this Court for extension of time to appeal. They applied for legal aid but their applications were refused on 24 June 2021.

16.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.

17.The applicants were one week late when she filed the 21 September 2020 summons, which is not substantial. In her affirmation in support of the application made to the Judge, the 1^st applicant stated that the delay was due to her baby falling ill. At the hearing before the Judge, she further explained that there was delay in receiving the court’s decision. The Judge did not find the explanation satisfactory in view of the lack of supporting details. For our part, considering the applicant acts in person and has two children to take care, we are prepared to accept that the delay was excusable and would focus on the merits of the intended appeal.

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 the affirmation.

21.In her written submission dated 27 July 2021, the 1^st applicant stated that her enemies are influential and powerful, and her life is under threat in Indonesia, yet the Director and the Board rejected her claim and the Judge found no error. She said that the non-refoulement claim had given her hope which was destroyed when her claim was rejected.

22.We are of the view that what has been 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 general assertion that it is unsafe for the 1^st applicant and her children to go to Indonesia is insufficient to enable the Court to review the Board’s decision.

23.In any event, we have examined the Board’s decision with particular regard to the case of the 2^nd applicant in light of 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 applicant’s claim was assessed together with the 1^st applicant, it is clear from its decision that the Board was keenly aware of the need to assess any risk of harm that she may face as an illegitimate child if she has to go to and live in Indonesia with the 1^st applicant. The Board found that the COI did not reveal serious risks of harm to the 2^nd applicant, and the 1^st applicant had not been able to substantiate her assertion that the 2^nd applicant faces risks of harm. This is a conclusion that the Board is entitled to make on the basis of evidence and COI available to it. There is no basis for the Court to intervene by way of judicial review.

24.For the above reasons, the Judge did not err in finding the intended judicial review has no reasonable prospect of success, and in refusing leave to apply for judicial review.

25.As the applicants’ intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 26 February 2021.

The 1^st and 2^nd applicants, unrepresented, acted in person.