Re Sarman Milakarina

CAMP 85/2024, [2025] HKCA 584

On Appeal From [2023] HKCFI 1314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 85 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 827 OF 2019)

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J U D G M E N T

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

1)  Renewed application for extension of time to appeal

1.On 26 March 2019, the applicant issued her application for leave to apply for judicial review by Form 86 in HCAL 827/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 14 March 2019 that refused the appeal by the applicant together with her son and daughter against the Decision of the Director of Immigration (‘the Director’)  of 26 February 2018.  

2.Deputy High Court Judge K W Lung (‘the Judge’)  dismissed the application for leave to apply for judicial review on 23 May 2023.  The Judge said that it was not known why the applicant alone applied for leave to apply for judicial review without the children[1].

3.Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 6 June 2023).  Being out of time for around three weeks, the applicant took out an application on 27 June 2023 requesting an extension of time to appeal (‘the extension application’).  The Judge on 31 August 2023 rejected the extension application.

4.On 16 May 2024, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

5.Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written statement, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.The applicant is a national of Indonesia.  In August 2012, she arrived in Hong Kong to work as a foreign domestic helper.  Later, her employment contract was prematurely terminated and she overstayed since June 2013.  In October 2013, she surrendered to the Immigration Department.  In June 2014, she made a written signification applying for non-refoulement[2].

7.Both the applicant’s son and daughter were born in Hong Kong in December 2013 and January 2017 respectively.  They were born out of a relationship between the applicant and an Indian Sikh.  In January 2015 and in September 2017, the applicant raised non-refoulement claims on the son and daughter’s behalf [3].

8.In January 2018, the applicant requested that her and her children’s claims should be jointly considered (‘the joint application’)[4].  The Director’s Decision and the Board’s Decision were decided based on the joint application[5].

9.The basis of the applicant’s non-refoulement claim is that she would be harmed or killed by her father due to his gambling habit and abuse against her[6].  The applicant was also scared that if refouled, her children would not be accepted by fellow Indonesians as the children are Sikhs while most Indonesians are Muslims[7].

10.The background facts have been summarized in the decision of the Judge at [5] to [8].

3)  The Director’s Decision

11.The Director decided against the joint application on 26 February 2018.  The Decision covered Hong Kong Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’)[8].

4)  The Board’s Decision

12.The applicants appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)[9].  After a hearing held on 28 November 2018, the Board dismissed the applicants’ appeal on 14 March 2019[10] (‘the Board’s Decision’).

13.The Board’s finding is summarized in the decision of the Judge at [11] to [14].

5)  Decisions of the Judge

14.In his decision dated 23 May 2023, the Judge held that the applicant was unable to provide a valid challenge to the Board’s Decision.  The Judge could not find any error of law or procedural unfairness in the Board’s Decision[11].

15.In his decision dated 31 August 2023, the Judge held that the applicant had no realistic prospect of success in her intended appeal.  The application for extension of time for appeal was refused[12].

6)  Legal principles

16.In considering whether to extend time for appeal, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

(4)  prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

17.Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to take out an appeal from the date of the Form CALL-1 decision. 

18.The Form CALL-1 was dated 23 May 2023. The deadline for applying for leave to apply for judicial review was 6 June 2023.  The applicant was about 21 days late when she took out a summons of 27 June 2023 for extension of time to appeal.  She simply stated that she did not receive the Form CALL-1 from the Court without providing further explanations, when according to Court record, the Form CALL-1 was sent to the applicant’s last known address without being returned undelivered[13].

(2)  Prospect of the intended appeal

19.In the applicant’s present application, she reiterated that she did not receive the decision below, and that she did not agree with the judgment but without giving any further explanation.  She attached copies of previous decisions of the Judge.  In her written submission, she stated the following in summary :

(1)  Her family became her enemy;

(2)  The Director did not believe her;

(3)  The Board made many error;

(4)  The High Court did not consider her argument;

(5)   The ‘Court judgment had no justice’.  

20.One problematic issue in this case is the absence of the applicant’s son and daughter from the judicial review application when all three of them were parties to the decisions of the Director and the Board.

21.In Suliyati [2024] HKCA 193 applying Sri-Wahyuningsih [2023] 4 HKLRD 320, this Court has stated when the applicant had previously represented her children in a non-refoulement claim before the Director and the Board but only chose to name herself in Form 86, the Judge who deals with the application should ascertain from the applicant the position regarding the children.  In the present case, the Judge did not direct a hearing but only considered the documents.  Likewise, the Judge also decided the extension application on paper.

22.We have directed an oral hearing be held for this application because we would like to ascertain from the applicant why the son and the daughter were not included in the application.

23.The applicant attended Court and explained that it was always her intention to include the two children in the application but as she asked someone to fill in the form for her, somehow her children were not included.  We accept what the applicant said about the omission.  We are of the view that it was most unlikely that the applicant had decided not to include her children in the judicial review application because in her supporting affirmation for extension of time below, she exhibited her application for accommodation subsidiary showing that she is living with her two children.  The judicial review application should have been amended to include the applicant’s son and daughter and be considered on the basis that it is an application made by all three of them.

24.In the circumstances, in order to ensure that the applicant together with her son and daughter’s cases could be properly considered we will treat this as a rolled up hearing.  We will grant extension of time to the applicant to appeal the Judge’s Decision.  We are also of the view that the appeal should be allowed.

8)  Disposition

25.Accordingly, we direct that the applicant shall issue and file a notice of appeal within 14 days.  Upon receipt of the notice of appeal, we will make an order formally allowing the appeal, setting aside the orders below and remitting the case to the Judge for reconsideration of the applicant and her son and daughter’s application.

Applicant, unrepresented, acting in person