Case Detail

HERMININGSIH SUCIPTO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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[2020] HKCFI 2756-EN-2020-10-28

HERMININGSIH SUCIPTO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

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HCAL 1044/2017

[2020] HKCFI 2756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1044 OF 2017

___________________

BETWEEN
	HERMININGSIH SUCIPTO	1^st Applicant
	HERMININGSIH SUCIPTO RAFIF AR HAIDER	2^nd Applicant
and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

___________________

Before: Hon Campbell‑Moffat J in Chambers

Date of Hearing: 28 October 2020

Date of Decision: 28 October 2020

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 26 August 2020 to appeal my decision of 7 August 2020, refusing leave to apply for judicial review. The applicants had 14 days in which to apply to appeal that decision. They did not do so. They now require leave to extend time to appeal against that order. The 1^st applicant attended Court on behalf of herself and the 2^nd applicant and had the benefit of aninterpreter.

Procedural Background

2. The applicants are Indonesian nationals. The 1^st applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. She was originally employed as a Foreign Domestic Helper in Hong Kong between 1999 and 2007. Thereafter she overstayed. On 10 March 2015, she gave birth to the 2^nd applicant after an extra marital affair with a Pakistani national who is no longer in Hong Kong. On 3 June 2015 she was sentenced to five months’ imprisonment for breach of condition of stay and after her release was sent to Castle Peak Bay Immigration Centre. The applicants submitted non-refoulement claims on 19 January 2016 and the 1^st applicant was interviewed by the Director of Immigration (“the Director”) on 8 March 2016. The Director dismissed their claims under all heads, by Notice of Decision on 8 April 2016 and by Notice of Further Decision 6 January 2017. They appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Kay Ransome, heard the 1^st applicant on 18 January 2017. The adjudicator refused their appeal on 4 May 2017.

3. They filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers. They were out of time. Their application for extension of time for leave to apply for judicial review was refused on 7 August 2020. This delayed date was as a result of administrative delays within the High Court. They had 14 days from that date to appeal that decision, which would have expired on 21 August 2020. By way of summons dated 26 August 2020, they seek leave to appeal out of time.

4. An applicant does not normally require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)). The applicant may appeal as of right. However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days. Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6). The Court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5. In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.

6. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his/her delay as this forms part of the consideration of whether there is good reason to allow an extension of time. The 1^st applicant (on behalf of both applicants) accepted they were late but maintained that they had not received the correspondence from the Court until 21 August 2020. The 1^st applicant did not explain why this was the case. The Court file suggests that it was properly served upon the address given at that time, which is the same address the applicant uses today. The 1^st applicant maintains she received it late and then needed time to seek advice. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his or her attention in a timely manner[2]. The consequences of any delay arising from failing to do so will fall upon the litigant,[3] as is the case here.

7. Even if the Court does accept that the explanation given for the delay is a reasonable one, and no such explanation has been provided today, the Court is nevertheless required to examine whether there is any merit in the applicant’s appeal[4]. Whether there is any such merit will depend upon well‑established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim. The 1^st applicant submits that she wishes to remain in Hong Kong until the 2^nd applicant completes his education. She has not obtained an Indonesian passport for him and the father has long since gone. If she is deported to Indonesia, her child will have no one to support him. She has made no attempt to secure his future. The question for the court is whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].

Conclusion

8. The 1^st applicant has now been in Hong Kong since 1999. She has been interacting with various government agencies since that date. She remained illegally and was undetected for some eight years between 2007 and 2017. The explanation she has offered to this court, as to why she did not receive the Order until 21 August 2020 is not acceptable.

9. In any event, I have considered the underlying application. It has no merit as explained in the initial refusal of leave. There were no grounds of review and none could be ascertained from the papers at that time. There was no complaint before the Court as to the decision to refuse leave. The 1^st applicant merely wishes the Court of Appeal to consider their situation afresh as the 2^nd applicant was born in Hong Kong and does not currently have Indonesian nationality. This was a deliberate act on the part of the 1^st applicant who believes she will not be deported if her child cannot go with her. Having considered the length of delay, reason for the delay and the lack of any underlying merit of their application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10. The applicants’ summons dated 26 August 2020 be dismissed.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

The 1^st applicant appeared in person.

[1]Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016)

[2]Re Ahmed Zakar CAMP 17/2019, [2019] HKCA 566

[3]Islam Raja Rais v Director of Immigration HCMP 881/2017

[4]Re Mehmood Ikhlas CAMP 28/2019 [2019] HKCA 567; Re MK HCMP 2609/2016; Re Gurung Min Bahadur CAMP 9/2018, [2018] HKCA 226

[5]Nupur Mst v Director of Immigration CAMP 54/2018 [2018] HKCA 524; Re Md Shohel Sheak CACV 233/2018 [2018] HKCA 714

[6]Re Ansar Muhammad[2018] HKCA 227

HCAL 1044/2017

[2020] HKCFI 1929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1044 OF 2017

BETWEEN

	Herminingsih Sucipto	1^st Applicant
	Herminingsih Sucipto Rafif Ar Haider	2^nd Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the Applicants being present/absent in open court

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicants:

Procedural history

1. The 1^st applicant had originally been employed as a foreign domestic helper in Hong Kong from 1999 to 2007. Thereafter, she left but returned to Hong Kong lawfully on 2 January 2008 and thereafter overstayed. On 3 June 2015, the 1^st applicant was prosecuted for breach of condition of stay and was sentenced to five months’ imprisonment despite the fact that she had recently given birth to the 2^nd applicant on 10 March 2015. On discharge from prison on 12 September 2015, they were transferred to Castle Peak Bay Immigration Centre. The 1^st applicant submitted a non-refoulement claim by way of written representation on 22 January 2015 and a further claim on behalf of her son on 9 November 2015. They were released upon recognisance on 12 September 2015. Their non-refoulement claim forms were submitted on 19 January 2016.

2. The 1^st applicant attended a screening interview on 8 March 2016. The Director of Immigration (“the Director”) dismissed their claims (not including that under BOR 2) by Notice of Decision (“the Decision”) on 8 April 2016 and by Notice of Further Decision (re BOR 2) on 6 January 2017. They petitioned/appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Kay Ransome (“the Adjudicator”), heard them on 18 January 2017. The Adjudicator considered their appeal on all applicable grounds including BOR 2 and refused their appeal on 4 May 2017.

3. The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4. The applicants are Indonesian nationals. The 1^st applicant was born on 5 September 1978 and was raised in Malang. She was married in Indonesia in 1996 and has a son from that union, who was born in 1998. She came to Hong Kong to work as a foreign domestic helper in 1999 and entered into an extra marital relationship in 2003. The 2^nd applicant was born in Hong Kong on 10 March 2015, from that relationship. The 1^st applicant has ceased to have contact with her husband and wishes to divorce him, which he has refused. She has also ceased to have contact with the 2^nd applicant’s father and does not know his whereabouts. The applicants’ claims are threefold. Firstly, she fears harm from loan sharks because of the indebtedness of the 1^st applicant’s parents. Secondly, they fear reprisal, to both herself and her son, from her husband if she returns to Indonesia. Thirdly, they fear ostracism by the Muslim community and her parents because she has a child born out of wedlock and he is illegitimate.

Form 86 out of time

5. In accordance with Order 53, rule 3, the applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 8 December 2017. Under Order 53, rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 4 May 2017 and expired on 4 August 2017.

6. It is incumbent upon the applicants to provide good reason for extending time. The applicants have submitted no explanation for their delay and have not sought leave for an extension of time. I have nevertheless considered the principles[1] applicable to granting such an extension if an application had been made and those are:

1) the length of delay;
2) the reasons for delay;
3) the prospects of success in the intended appeal; and
4) the prejudice to the putative respondent and administration of justice if extension of time were granted.

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.

11. This application is refused.

Dated the 7^th day of August 2020.

	(Marcus Wong)
	for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence.

Notesfor the Applicants: If leave has been refused, and the Applicants wish to appeal this decision, the Applicants or their solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellants must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellants must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicants on 7 August 2020 Herminingsih Sucipto Herminingsih Sucipto Rafif Ar Haider Applicants’ ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7 August 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3516/16/4/124/I308 USM 3517/16/4/125/I309 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9001114/16 (formerly RBCZ 10694/15) RBCZ 9001115/16 (formerly RBCZ 14037/15)

Form CALL-1

[1]Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393; H v Director of Immigration[2020] HKCFA 22