Case Detail

CAMP 95/2021, [2024] HKCA 50

On An Intended Appeal From [2020] HKCFI 1692 &

[2021] HKCFI 635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 95 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 466 OF 2018)

________________________

BETWEEN

	SULEKHAH	1^st Applicant
	KULDEEP JASMINE DEEPIKA KAUR	2^nd Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon Yuen and Chow JJA in Court

Dates of Written Submissions:	4 November 2022 and 21 September 2023
Date of Judgment:	19 January 2024

________________________

J U D G M E N T

________________________

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

1. On 18 March 2021, Deputy High Court Judge Bruno Chan (“the Judge”) made an order refusing to grant the Applicants an extension of time to appeal against an earlier order of the Judge dated 27 July 2020 (“the Order”), whereby the Judge refused to grant leave to the Applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 23 November 2017 dismissing the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 27 June 2017 rejecting the Applicants’ non-refoulement claims.

2. On 10 October 2022, this Court gave its judgment (“the CA Judgment”) dismissing the Applicants’ renewed application for an extension of time to appeal against the Order. The basic facts of this case and the Court’s reasons for dismissing the Applicants’ application have been set out in the CA Judgment and will not be repeated here, save to point out that the 2^nd Applicant (“A2”) is the 1^st Applicant (“A1”)’s minor child born out of wedlock in Hong Kong in March 2016.

3. By Notice of Motion dated 27 October 2022, the Applicants applied for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicants stated as follows:

“1. Failure to consider our fear that my and my daughter life would be at danger upon refoulement to the country of origin, my claim including my daughter, who does not have any nationality and if she refouled to my country her life will be at danger because she is stateless and my Country Authority would not able to protect her.
2. Failure to observe the Country of Condition (COI) information that we will be face serious risk upon refoulement.” [sic]

4. In the written submissions filed by A1 in support of the Notice of Motion on 4 November 2022, she explained that she delayed in taking out the application to appeal against the Order because she did not receive the Judge’s decision in time, and complained that in refusing the application for an extension of time to appeal, the Judge failed to consider the reasons stated in the summons filed in support of her application. She stated that A2 was born out of wedlock in Hong Kong, and alleged that A2’s status as a stateless person would put their lives in danger if they were refouled. She also complained that the Director and the Board failed to take into account relevant considerations, took into account irrelevant considerations, and failed to give proper weight to relevant considerations and materials, leading to the illegality of their decisions. No particulars were given in support of these complaints.

5. On 17 April 2023, a legal aid certificate was granted to A2 for the purpose of “continuing CAMP 95/2021 limited to obtaining leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision dated 10^th October 2022”. On 3 May 2023, counsel was assigned by the Director of Legal Aid to assist A2 under the legal aid certificate.

6. On 21 September 2023, solicitors on behalf of A2 filed two summonses, one for leave to (i) amend the Form 86, and (ii) file a Supplementary Notice of Motion (“the Amendment Summons”), and the other for leave to adduce the following items of new evidence ( “the Proposed New Evidence”) in support of her application for judicial review/leave to appeal to the Court of Final Appeal (“the New Evidence Summons”):

(1)  A1’s written submissions dated 23 November 2016 to the Immigration Department;
(2)  A1’s written submissions dated 28 February 2017 on behalf of A2 to the Immigration Department;
(3)  A1’s non-refoulement claim form dated 14 March 2017;
(4)  A2’s non-refoulement claim form dated 23 May 2017;
(5)  record of screening interview on 15 June 2017;
(6)  A1’s notice of appeal/petition dated 10 July 2017;
(7)  A2’s notice of appeal/petition dated 10 July 2017;
(8)  skeleton submissions for the Director of Immigration;
(9)  country of origin information (“COI”)  before the Board; and
(10)  compact disc containing the audio recording of the hearing of the appeal/petition before the Board on 30 October 2017 and its certified transcript.

Items (1) to (9) of the Proposed New Evidence were before the Board in its determination of the Applicants’ appeal against the Director’s decision. Item (10) is the record of the hearing of the appeal conducted by the Board.

7. On 21 September 2023, skeleton submissions of Mr Ngan were lodged on behalf of A2 in support of her various applications.

8. After reviewing the materials in the present case, we are of the view that it is appropriate to determine the above applications on paper without an oral hearing under Order 59, rule 14A of the Rules of High Court, Cap. 4A, and in accordance with the usual practice pursuant to paragraph 3 of Practice Direction 2.1, notwithstanding counsel’s request for an oral hearing if the Court is minded to dismiss any of A2’s applications on paper.

9. We shall first consider the Notice of Motion dated 27 October 2022 before we turn to deal with the various applications filed on behalf of A2.

NOTICE OF MOTION DATED 27 OCTOBER 2022

10. Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11. No question of great general or public importance involved in the intended appeal is identified in the Notice of Motion.

12. In respect of the complaints that the Court failed to consider the risk of harm that the Applicants would face if refouled and/or relevant country of origin information, these are bare and general assertions without particulars.

13. As for the complaints with respect to A2’s lack of nationality or status of statelessness, these are new grounds which were not raised before the Judge or this Court. The Applicants are not entitled to raise these grounds for the first time in the present leave application.

14. The Applicants have not raised any viable ground of appeal against the CA Judgment. We are satisfied that the intended appeal based on the matters raised in the Notice of Motion has no merits and no reasonable prospect of success.

A2’S APPLICATIONS

15. A2’s application for leave to apply for judicial review of the Board’s decision has been rejected by the Judge, and her application for an extension of time to appeal the Order has been rejected by both the Judge and this Court. What is left is her application for leave to appeal the CA Judgment to the Court of Final Appeal. Hence, her applications for leave to (i) amend the Form 86, and (ii) adduce the Proposed New Evidence can only be relevant to her application for leave to appeal, and should be considered in that light.

16. In the draft Amended Form 86, A2 seeks to raise the following grounds of review:

(1)  failure to consider A2’s non-refoulement claim separately;
(2)  failure to refer A2 to the Duty Lawyer Service for legal assistance;
(3)  failure to apply the relevant principles applicable to non-refoulement claims made by children including the principle of the best interests of the child;
(4)  failure to make sufficient inquiry; and
(5)  failure to give adequate reasons[1].

17. A2 intends to rely on the Proposed New Evidence in support of the above grounds of review[2].

18. The above grounds of review are new grounds which were not raised in the original Form 86. Thus, they were not considered by the Judge or this Court, save in relation to the need for separate consideration and assessment of A2’s position as a minor non-refoulement claimant. At §§28-30 of the CA Judgment, this Court came to the following conclusion:

“[28] As rightly pointed out by the Judge at [8] of the Leave Decision, A2’s claim was based on A1’s case of fear of being harmed by her husband upon return to Indonesia, which was rejected by the Board. The Board separately considered, and rejected, A2’s claim of risk at [88] of its decision, drawing upon the evidence that the husband had not done any harm to the 1^st illegitimate child. That was a conclusion of fact which the Board was entitled to make on the evidence.
[29] We agree with the Judge that the Board had adopted the proper approach in its determination and assessment of A2’s non-refoulement claim and in our judgment, the Board’s finding on A2’s case is justified and reasonable.
[30] In the circumstances, we are satisfied that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board and the Judge. In short, A2’s appeal has no merit. We therefore treat the absence of legal representation of A2 before the Judge and in this appeal as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review.”

19. Although Mr Ngan submits that the transcript “revealed” that the Board did not make any inquiry into A2’s personal circumstances, he has not specified what were those circumstances (other than the undisputed factual matters) that were material.

20. A2 is not entitled to rely on new grounds of review which were not raised in the original Form 86, and/or were not considered by the Judge at first instance or the Court of Appeal on appeal in the present application for leave to appeal. If leave to appeal is granted based on completely new grounds of review, the Court of Final Appeal will have to deal with them for the first time, instead of examining the correctness of the CA Judgment. We do not consider that A2 can expect, or require, the Court of Final Appeal to undertake such exercise. Accordingly, we refuse A2’s applications to amend the Form 86 or adduce the Proposed New Evidence.

21. In relation to the Supplementary Notice of Motion, two questions (“the Proposed Questions”) said to be of great general or public importance are raised:

“1. In the assessment of the non-refoulement claim of a child claimant, is the decision-maker under a duty to apply the principle of the best interests of the child when applying the child-specific or child-sensitive approach?
2. If the answer is in the affirmative, what is the proper scope of that duty?”

22. Mr Ngan submits that the Proposed Questions are of great general or public importance and ought to be submitted to the Court of Final Appeal for determination as there is no authority in Hong Kong on whether or not, and how, the principle of the best interests of the child should be applied when a child’s non-refoulement claim is assessed[3].

23. We do not consider the Proposed Questions to be of great general or public importance. The proper approach to consideration of a minor’s non-refoulement claim is well-established (see Fabio Arlyn Timogan[2020] HKCA 971and Re Jasvir Singh & others[2021] HKCA 53), and has been applied by the courts in Hong Kong in numerous cases. The well-established approach already takes into account the special situation of a minor non-refoulement claimant. It is not necessary to introduce an additional or separate requirement, namely, “the best interests of the child” referred to in the Proposed Questions. In any event, the Proposed Questions raise a new issue which has not been considered by the Judge at first instance or the Court of Appeal on appeal. We do not consider that leave to appeal based on the Proposed Questions should be granted in such circumstances.

24. There is also no basis to grant leave to appeal to either A1 or A2 based on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance. In any event, it is the well-settled practice of this Court to defer the “or otherwise” limb for consideration by the Appeal Committee of the Court of Final Appeal.

DISPOSITION

25. For the above reasons, the Notice of Motion, the Amendment Summons and the New Evidence Summons are dismissed.

26. A2’s own costs shall be taxed in accordance with the Legal Aid Regulations.

(Maria Yuen)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The 1^st Applicant, unrepresented, acting in person

Mr Francis Ngan, instructed by John M. Pickavant & Co., assigned by the Director of Legal Aid, for the 2^nd Applicant

[1] See §65 of the draft Amended Form 86.

[2] See §§15, 21 and 22 of the Skeleton Submissions of the 2^nd Applicant dated 20 September 2023.

[3] See §28 of the Skeleton Submissions of A2.

CAMP 95/2021

[2022] HKCA 1480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 95 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 466 OF 2018)

________________________

RE:	SULEKHAH	1^st Applicant
	KULDEEP JASMINE DEEPIKA KAUR	2^nd Applicant

________________________

Before: Hon Yuen and Chow JJA in Court

Date of Judgment: 10 October 2022

________________________

J U D G M E N T

________________________

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

1. On 27 July 2020, DHCJ Bruno Chan (“The Judge”) refused an extension of time for, and dismissed, the applications of the 1^st and 2^nd applicants (collectively called “the Applicants”) for leave to apply for judicial review concerning their non-refoulement claims (“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 9 October 2020 for extension of time to appeal. That summons was dismissed by the Judge in his decision of 18 March 2021 (“the Leave Decision’).

3. On 29 March 2021, the Applicants filed a summons in CAMP 95/2021 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4. The 2^nd Applicant (“A2”)’s application for legal aid was refused on 12 August 2021. Pursuant to the directions of the Registrar of Civil Appeals made on 18 August 2021, the Applicants should lodge their written submissions on or before 1 September 2021. They failed to do so. It was further directed that in the event the Applicants failed to lodge their written submissions, they shall be deemed to have abandoned their rights to rely on written submissions, and the matter will be referred to the Court of Appeal for determination based on the available materials.

5. Under Order 59 r.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.

Background

6. The 1^st Applicant (“A1”) is a national of Indonesia. She was married to a man in Indonesia (“the husband”). In 2013, she came to Hong Kong to work as a foreign domestic helper. She formed a relationship with a former boyfriend from Indonesia, and gave birth to a son in July 2014 (“the 1^st illegitimate child”). After that relationship broke up, she returned to Indonesia to place the 1^st illegitimate child in her mother’s care. She alleged that when her husband found out about the child, he and his brother assaulted her.

7. The applicant then came to Hong Kong again on 4 April 2015 to work as a foreign domestic helper. She had an affair with another man, her current boyfriend, and gave birth to A2 in March 2016. Her employment contract was prematurely terminated on 10 May 2016. However, she did not depart and instead overstayed. She then surrendered to the Immigration Department and raised a non-refoulement claim on 23 November 2016 alleging that if refouled, she would be harmed or even killed by her husband over her extramarital affairs in Hong Kong. On 28 February 2017, she raised a non-refoulement claim for A2 on the same basis, for which their claims were jointly considered and assessed together. She also claimed that her husband and his brother were planning to come to Hong Kong to work, or check if she was with another man, or to harm her.

8. By the Notice of Decision dated 27 June 2017, the Director of Immigration (“the Director”) decided against the Applicants’ claims. 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

9. The Applicants appealed the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”). The Applicants attended an oral hearing on 30 October 2017 and by its decision dated 23 November 2017, the Board dismissed the Applicants’ appeal and confirmed the Director’s decision. For the reasons set out in [74] to [90], the Board accepted A1’s claim that she had been abused by her husband over her previous extramarital affairs which had led to an incident of violence in 2015, but it found no reliable evidence of any real intention on the part of her husband or his brother to cause serious harm to her, let alone to kill her, as she claimed. It found she had exaggerated her claims of her husband’s (and his brother’s) adverse interest in her [83].

10. In respect of A2’s case, A1 had claimed that A2 was at risk of harm as her husband had warned her if she came home with another illegitimate child, he would do something more serious than what he had done before. The Board noted that previously her husband had only harmed her, but not the 1^st illegitimate child [88]. Hence, the Board did not consider that A2 would face any real or substantial risk of harm from A1’s husband upon return to Indonesia.

11. The Board referred to relevant country of origin information (“COI”) that there is assistance available for victims of domestic violence in Indonesia, as well as a specialised police task-force targeting domestic abuse [67]. There are also services available to single mothers [70]. The Board had also taken into account A1’s own intention to go back to her home village if refouled, despite the fact that other options are available to her and this suggested that A1 holds little real apprehension for her safety in the event of her return [87].

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

Application for leave to start judicial review

13. On 22 March 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision. By then they were late with their application, as Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose. The deadline fell on 23 February 2018. The Applicants did not provide any explanation for their one-month delay nor did they provide any ground for relief. In A1’s supporting affirmation, she merely mentioned that her life is in danger and she cannot go back. She urged the court to consider her situation.

The JR Decision

14. The Applicants 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 [13] - [18] of the JR Decision:

“13. As the last day of the three-month period for the Applicants to file their Form 86 fell on 23 February 2018, they were therefore one month late with their application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.
14. In the Applicants’ case, a delay of one month cannot be regarded as insignificant or insubstantial, for which they never provided any explanation, and as the record reveals that the Board’s decision was sent on the same day to their last reported address which is the same as that stated in their Form 86, I do not see any good or valid reason for their delay.
15. As for the merits of their intended application, as noted above the Applicants did not put forward any proper or valid ground in support, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any merits in their intended challenge.
16. 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.
17. 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.
18. 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.”

Application for extension of time to appeal the JR Decision

15. As mentioned earlier, the Applicants were late in filing a notice of appeal against the JR Decision. They filed a summons in the Court of First Instance on 9 October 2020 for extension of time to appeal against the JR Decision. That was dismissed by the Judge on 18 March 2021. Hence, the summons to this court.

Discussion

16. 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 Applicants were late for about 2 months between the deadline for appealing the JR Decision and the summons filed in the Court of First Instance.

17. As for (2), the reasons for the delay, A1 explained at the hearing before the Judge that she never received the JR Decision in the mail, and that it was only later when she reported to the Immigration Department on recognizance that she was informed by an officer of the JR Decision. By then she and A2 were already out of time with their intended appeal. A1 did not provide any evidence to corroborate her assertions, and the court file showed that the JR Decision was sent to the Applicants’ last reported address without being returned through the post. The Judge had rightly held that A1 had failed to provide any good reason for the delay.

18. The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.

19. We shall discuss A1’s case first. A1 did not suggest any grounds or any particulars of error in the JR Decision for the intended appeal. At the hearing before the Judge, A1 merely repeated her claim that she and A2 cannot return to Indonesia for fear of harm from her husband.

20. The Judge had applied the right test and legal principles as set out in AW v Director of Immigration [2016] 2 HKC 393 in considering whether to grant an extension of time and the Judge had rightly held that the matter raised by A1 are not valid grounds of appeal and there was no merit in her underlying application.

21. In A1’s summons and supporting affirmation before this Court, she also failed to provide any grounds of appeal. She merely stated that she did not know English and court procedure and did not have any financial resources. Hence, it is not easy for her to appeal against the authorities.

22. Nothing mentioned in A1’s supporting affirmation can be regarded as a valid ground of appeal. She had submitted all her documentation in English and so obviously had access to language assistance. Information about court procedure can be found at the unrepresented litigants resource centre. A1 has failed to identify any specific errors in the JR Decision, or any potential grounds for reversing the JR Decision.

23. As mentioned earlier, the Board had as a finding of fact rejected the claim that A1 will face any real or substantial risk of harm from her husband upon return to Indonesia. Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.

24. For these reasons, insofar as A1 are concerned, we do not see any reasonable prospect of success in her intended appeal, and it would not be in the interest of justice to grant an extension of time to appeal against the JR Decision.

25. As for A2’s position, as mentioned previously, she is a minor and was not legally represented in these proceedings as required by Order 80 rule 2 of the Rules of the High Court.

26. The proper approach to children’s non-refoulement claims was considered by this Court (Lam VP, Barma & Au JJA) in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office[2020] HKCA 971:

(a)  Non-refoulement claims by children, even if based on the same set of primary facts as their parents’, 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 a parent’s claim 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.[5]

27. With the aforesaid principles, the Court needs to be satisfied that the Board had achieved a high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board. On being so satisfied, it would be open to the Court to treat the non-compliance with Order 80, Rule 2 as a mere irregularity and to conclude that the minor’s intended judicial review is without merit notwithstanding the minor has not been legally represented before the Board and before the Judge (Jasvir Singh and others[2021] HKCA 53, [33]).

28. As rightly pointed out by the Judge at [8] of the Leave Decision, A2’s claim was based on A1’s case of fear of being harmed by her husband upon return to Indonesia, which was rejected by the Board. The Board separately considered, and rejected, A2’s claim of risk at [88] of its decision, drawing upon the evidence that the husband had not done any harm to the 1^st illegitimate child. That was a conclusion of fact which the Board was entitled to make on the evidence.

29. We agree with the Judge that the Board had adopted the proper approach in its determination and assessment of A2’s non-refoulement claim and in our judgment, the Board’s finding on A2’s case is justified and reasonable.

30. In the circumstances, we are satisfied that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board and the Judge. In short, A2’s appeal has no merit. We therefore treat the absence of legal representation of A2 before the Judge and in this appeal as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review.

31. For these reasons, we do not see any prospect of success in either Applicant’s intended appeal. It would be futile to extend the time for a hopeless appeal. The summons dated 29 March 2021 is dismissed accordingly.

(Maria Yuen)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The applicant, unrepresented, acting in person.

[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] UNHCR Guidelines on International Protection for Child Asylum Claims HCR/GIP/09/08, 22 December 2009 paragraph 11.

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

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