Re Suryaningsih and Another

CAMP 519/2022 [2024] HKCA 1022

On appeal from [2022] HKCFI 1574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 519 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1052/2019)

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J U D G M E N T

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

1.This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 16 June 2022 refusing leave for the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 11 April 2019 (“the Board’s Decision”) dismissing the applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 28 December 2017 (“the Director’s Decisions”) which dismissed their non-refoulement claims.

Background

2.The 1^st and 2^nd applicants are nationals of Indonesia, and they are respectively mother and daughter.  The 1^st applicant arrived in Hong Kong on 6 January 2012 as a foreign domestic helper, but she overstayed and was arrested by the police on 26 October 2012.  Subsequently, the 1^st applicant lodged a torture claim, which was rejected on 9 August 2013.  She did not appeal against this decision.  On 17 September 2013, by way of a written signification dated the same, the 1^st applicant made a non‑refoulement claim, which was assessed on all applicable grounds other than the torture risk[1].

3.On 23 May 2014, the 1^st applicant gave birth to the 2^nd applicant out of wedlock in Hong Kong.  The 1^st applicant later lodged a non‑refoulement claim (assessed on all applicable grounds) on behalf of the 2^nd applicant by way of a written signification dated 20 October 2014.

4.The claim of the 2^nd applicant is based on the facts and evidence submitted and advanced by the 1^st applicant for the purposes of her claim. 

5.The 1^st applicant’s claim was based on a fear of being harmed or killed by a Mr Sarmin due to her inability to repay a loan, as well as being shunned, harmed or killed by her family because the 2^nd applicant was born out of wedlock.  The details of the applicants’ claims have been summarised by the Judge at [4] to [6] of his decision (“the CALL‑1 Form”)[2].

6.The applicants were legally represented by the Duty Lawyer Service in completing their claim forms and in lodging their non‑refoulement claims to the Director.  By a Notice of Decision dated 28 December 2017, the Director decided against the applicants’ claims. The Director’s Decision covered, in respect of the 2^nd applicant’s claim, the torture risk, the persecution risk[3], the BOR 2 risk^[4] and the BOR 3 risk[5], and in respect of the 1^st applicant’s claim, all applicable grounds other than torture.

7.The applicants appealed to the Board.  After a hearing on 17 January 2019, at which the 1^st applicant appeared in person, the Board dismissed the appeal on 11 April 2019 by its Decision.  The Board took the view that the account given by the 1^st applicant on her circumstances in Indonesia (including the loan she allegedly obtained from a loan shark) was inconsistent, with her testimony at the hearing contradicting the facts she had presented to the Director.  The Board found on the facts and evidence that the 1^st applicant had “fabricated and concocted her evidence” and that she had not in fact been threatened by a loan shark at all (see [50] of the Board’s Decision).  Moreover, at the hearing, the applicant admitted to the Board that she no longer fears that she and the 2^nd applicant would be harmed or ostracised by her family, that her parents have shown a “willingness to accept her and the 2^nd applicant”, and that in fact, she “would like to go home” (see [51] of the Board’s Decision).

The Judge’s decision

8.The applicants filed a Form 86 on 17 April 2019 (as amended by the Judge on 16 June 2022: see [2]-[3] of his decision dated the same) seeking to judicially review the Board’s Decision without setting out any grounds of review.  The applicants stated in the Form 86 (and the 1^st applicant stated in her supporting affirmation filed on 17 April 2019) that (contrary to her admissions to the Board) the 1^st applicant was scared to return to Indonesia, as her family did not know that she had conceived and given birth to the 2^nd applicant.

9.After summarizing the facts and background of the case and giving due consideration to the Board’s Decision and the Director’s Decisions, the Judge refused leave for the applicants to apply for judicial review.  The Judge gave the following reasons in refusing leave at [14] to [20] of the CALL‑1 Form:

“"14.   The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  It is clear that the Director and the Board had considered the 2^nd applicant’s case separately, identifying the issues relating to the 2^nd applicant, which satisfies the requirements set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971.

17.  The 1^st applicant has raised no valid ground to challenge the Board’s Decision.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.”

The present application for extension of time to appeal

10.According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicants at their last known address on 16 June 2022.  This letter was not returned undelivered.  

11.The applicants later took out a summons in the Court of First Instance on 16 August 2022 seeking extension of time to appeal. In the supporting affirmation, the 1^st applicant claimed that she did not receive “the decision from High Court”.  

12.Pursuant to Order 53 rule 3(4), the applicants had 14 days to lodge an appeal.  The applicants did not file a Notice of Appeal within 14 days of the Judge’s decision dated 16 June 2022.  

13.The applicants’ application to appeal out of time was dismissed by the Judge on 23 September 2022[6].

14.By a summons filed on 6 December 2022, the applicants renewed their application for an extension of time to appeal before this court.  In the summons, the applicants stated that they would like to “challenge the decision”.  In the supporting affirmation filed on the same date, the 1^st applicant merely repeated that she was “late to appeal” and asked for an extension of time.

15.Meanwhile, the Registrar of Civil Appeals noted that due to the 2^nd applicant being a minor, she should act by a next friend and must act by a solicitor in accordance with Order 80 rule 2 of the Rules of the High Court (Cap 4A).  On 8 December 2022, the Registrar directed that steps should be taken on behalf of the 2^nd applicant as soon as possible, including the possibility of applying for legal aid for the conduct of their appeal (“the Direction”). 

16.The Direction, however, was not complied with, resulting in the Registrar directing on 10 March 2023 inter alia that the summons filed on 6 December 2022 will nonetheless be proceeded with, and that should the applicants fail to lodge their written submissions on or before 27 March 2023, they will be deemed to have abandoned their rights to make further submissions and that this court will determine the application based on the available materials.

17.The applicants failed to lodge any written submissions as directed.  This court therefore now proceeds to determine the application on the papers.

Discussion

18.The applicants have proffered no reason or explanation for the delay in bringing the intended appeal.  The CALL-1 Form was sent to the applicants’ last known address at the time, and the letter containing it was not returned undelivered.  It could therefore be readily inferred that they had knowledge of the Judge’s decision within the period which they were permitted to lodge an appeal.  In the circumstances, we are of the view that there is no reasonable explanation for the applicants’ delay in bringing the intended appeal.

19.We have nonetheless proceeded to consider the merits of the intended appeal.

20.The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

21.The applicants did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicants have not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

22.It is however necessary for this court to consider the position of the 2^nd applicant separately, as 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).  See Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

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

(a)  non-refoulement claims by children, 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 children;

(b)  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;

(c)  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.

24.It is apparent from the analysis set out in the decisions of the Director and the Board that they had specifically considered the 2^nd applicant’s claim, which is the risk of her facing discrimination and harm /shunning by her family by reason of being a child born out of wedlock (see the Director’s Decision at [12.50]).  In particular, the Board had specifically considered the position of the 2^nd applicant, by taking into account the fact that, inter alia, the 1^st applicant had (i) fabricated her claims regarding the loan shark; and (ii) admitted that her parents have shown a willingness to accept her and the 2^nd applicant, and that accordingly there was no longer a risk of harm posed to the 2^nd applicant by either the family or the loan shark (see [50]-[54] of the Board’s Decision).

25.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.

26.More importantly, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2) & (4)]. 

27.The applicants have failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

28.For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 6 December 2022 is accordingly dismissed.

29.For the avoidance of doubt, the non-compliance with Order 80 rule 2 in these proceedings is treated as a mere irregularity without rendering the 2^nd Applicant’s application a nullity.