Re Herminingsih Sucipto

CAMP 210/2020

[2022] HKCA 368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 210 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1044 OF 2017)

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J U D G M E N T

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

1.On 7 August 2020, Campbell-Moffat J (“the Judge”) refused an extension of time for, and dismissed, the applications of the 1^st applicant (“A1”) and her son Herminingsih Sucipto Rafif Ar Haider (originally the 2^nd applicant) for leave to apply for judicial review proceedings concerning their non-refoulement claim (“the JR Decision”).

2.The applicants did not lodge an appeal within 14 days.  They filed a summons in the Court of First Instance on 26 August 2020 for extension of time to appeal (which was late by 5 days).  That summons was dismissed by the Judge by her decision of 28 October 2020 (“the Leave Decision’). 

3.On 12 November 2020, A1 filed her summons in CAMP 210/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.  In the summons and supporting affirmation, she explained that her son the 2^nd applicant has become a Hong Kong citizen and no longer needs to continue with a non-refoulement application. Accordingly, this Judgment will only deal with A1’s case.

4.Under Order 59 rule 14A(1) Rules of High Court (Cap 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without an oral hearing.  In compliance with the directions made by the Registrar of Civil Appeals on 11 December 2020, A1 filed her written submissions on 6 January 2021.

Background

5.The brief background is as follows.  A1 is a national of Indonesia.  She completed junior high school and was married in 1996.  She came to Hong Kong as a foreign domestic helper in 1999 and her last contract was prematurely terminated in 2007.  In 2003, she had entered into an extra-marital relationship with a Hong Kong resident.  In or about 2006, when she was on annual leave from her Hong Kong employment and had returned to Indonesia, loan sharks turned up demanding repayment of her parents’ loans which amounted to 65 million Indonesian Rupiahs.  She managed to repay 4 million Indonesian Rupiahs on that occasion.  After she returned to Hong Kong, the loan sharks made demands on her parents for repayment and she suspected that the loan sharks are waiting for her to return home. 

6.Upon the premature termination of her last contract, she left Hong Kong but came back on 2 January 2008 as a visitor.  She overstayed after 5 January 2008 and surrendered to the Immigration Department on 8 December 2014.  She raised her non-refoulement claim on 22 January 2015.  Thereafter, she gave birth to her son on 10 March 2015.  Her claim was made on the basis that if she were refouled, she would be harmed or even killed by the loan sharks for her parents’ loan, and by her husband as she had given birth to her son.

7.By the Notice of Decision dated 8 April 2016 and Notice of Further Decision dated 6 January 2017, the Director of Immigration (“the Director”) decided against A1’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

The Board’s decision

8.A1 appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  She attended an oral hearing on 18 January 2017. By its decision dated 4 May 2017, the Board dismissed the appeal and confirmed the Director’s decision.  The Board found that A1 was generally consistent in her evidence and her evidence was plausible.   The Board accepted that A1’s parents had borrowed money from loan sharks and she was requested to repay the loan;[5] however, as neither A1 nor her parents were harmed in the past and she has had no contact with her parents since 2015, the Board took the view that it is unlikely that the loan sharks would still wait for A1’s return after such a long time.[6] 

9.Regarding A1’s claims that she would be harmed by her husband in Indonesia, the Board took the view that the fear and risk was speculative as even on A1’s own evidence, she has ceased to have any contact with her husband since 2014 and when she told her husband that she might return with her son to Indonesia some years ago, her husband only issued a vague threat to her. 

10.Based on the aforesaid, the Board assessed that the risk of any harm befalling A1 at the hands of the loan sharks and A1’s husband was  low.[7]

11.Moreover, the relevant Country of origin information (“COI”), showed that the law in Indonesia provides criminal penalties for official corruption and prohibits domestic abuse and other forms of violence against women, particularly domestic violence.  The Indonesian government runs integrated service centres for women suffering domestic violence all over the country and the available information showed that A1 would be able to seek assistance from the authorities and non-government agencies if needed.[8] There are also services provided by non-government organization such as “Women-headed Households Empowerment Program” for women and children without male support.[9]

12.For the aforesaid reasons, the Board found that there are no substantial grounds for believing A1 would be in danger of being subjected to torture or any real risk of harm if she returned to Indonesia and her non-refoulement protection claim was refused on all applicable grounds.

Application for leave to start judicial review

13.On 8 December 2017, A1 filed a Form No. 86 to apply for leave to judicially review the decisions of the Director and the Board.  It was a late application as the 3-month time limit as prescribed under Order 53 rule 4 for seeking leave to apply for judicial review had expired.  In the summons and A1’s supporting affirmation, she did not explain her delay nor provide any grounds for review.

The JR Decision

14.The applicant did not request an oral hearing and the application was disposed of on paper.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant an extension of time and refused leave to apply for judicial review for reasons set out in [7] - [10] of the JR Decision:

“7. In this case, the applicants were late by over four months and have not offered any explanation for this delay.  In view of the absence of good reason (or indeed any reason) for their delay, they must satisfy the court that there is a reasonable prospect of success in their intended leave application and that there will be no prejudice to the putative respondent or administration of justice if an extension of time were to be granted.  There is no suggestion there would be any such prejudice save that it is in the interest of justice for matters subject to judicial review to be dealt with expeditiously.  This application therefore turns upon the likelihood of success in their application for judicial review.

8.       Judicial review is not a rehearing of the merits of the applicants’ original application for refugee status.  As the applicants have already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimants and dealt with.  It can therefore only be an application to apply for leave to judicially review the Decision of the Adjudicator.  The applicants must therefore show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with their application in order to obtain an extension of time to seek leave to judicially review that Decision.

9.       All of the papers considered by the Director, were before the Adjudicator.  She arranged for an oral hearing and went to some lengths to consider the position of mother and child if refouled back to Indonesia given her son’s illegitimacy.  This was the most obvious area of concern.  She satisfied herself that the applicants could avail themselves of a number of services for people in their position and that the likelihood of harm to either of them was low.  There was no suggestion within the materials that they would be refused such assistance.  As for the issue of the loan sharks, it was clear that the parents had other family members to rely upon and that they had purposefully had nothing to do with the applicants since they received news of her pregnancy in 2015.  Her father had since died and the 1^st applicant had no up‑to‑date knowledge of the financial circumstances of her mother and the remainder of her family.  As for any harm from her husband, this too was speculative in nature.

10.     In the absence of any reason for the delay and any grounds of review, the court is left with the bare facts as relied upon by the applicants and the application of the law to those facts by the Adjudicator along with the explanation given by her in the Decision.  Having analysed that Decision, there is no reasonably arguable basis upon which the applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted leave.”

Application for extension of time to appeal the JR Decision

15.Following H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22, the 1^st applicant may appeal against the JR Decision as of right under Order 59, rule 21(1)(g), but she should file the appeal in the Court of Appeal within 14 days thereafter under Order 53 rule 3(4).  As mentioned earlier, the 1^st applicant was late in filing a notice of appeal against the JR Decision.  She filed a summons in the Court of First Instance on 26 August 2020 for extension of time to appeal against the JR Decision.  That was dismissed by the Judge on 28 October 2020.  Hence, the summons to this court. 

16.For the reasons set below, we do not find any reasonable prospect of success in the intended appeal against the JR Decision.

Discussion

17.In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).  As for (1), the 5-day delay (21-26 August 2020) was not substantial. 

18.As for (2), the reasons for the delay, the applicant explained in her supporting affirmation that she did not receive the JR Decision until 21 August 2020 and she needed time to seek legal advice.  The Court file shows that the JR Decision was properly served on the address she had given and the mail was not returned which suggested it was delivered to A1’s address.   The Judge rightly held that in the absence of any good reason for the delay, A1 should bear the consequence of the delay.

19.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  A1 did not provide any grounds for her intended appeal before the Judge.  At the hearing, she submitted that she wished to remain in Hong Kong until her son completes his education.  The Judge rightly held that the matters raised by A1 were not valid grounds of appeal and there was no merit in her application. 

20.In present summons and the supporting affirmation of A1, no intended grounds of appeal have been set out.  In the written submissions lodged by A1, she stated that there is a genuine risk to her life from the loan shark and her husband.  She complained that the Board did not consider her situation thoroughly.

21.This Court has repeatedly emphasized that the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision maker is the Board and the court will not interfere with the Board’s decision unless there are valid public law grounds, which we do not find in this case.  Further, this Court would only examine the decision of the Judge in light of the grounds advanced by the applicant.  In the absence of any valid grounds of appeal against the JR Decision, the appeal is bound to fail.

22.For these reasons, we do not see any reasonable prospect of success in A1’s intended appeal and it would not be in the interest of justice to grant an extension of time to appeal against the JR Decision. The summons dated 12 November 2020 is dismissed accordingly.

The applicant, unrepresented, acting in person.