RE SHURENCHIMEG NARANCHIMEG

HCAL 2827/2019

[2022] HKCFI 1446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2827 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons for extension of time to appeal the order of Deputy High Court Judge P. Li (“DHCJ Li”) dated 26 January 2022 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/ the Non-Refoulement Claims Petition Office (the “Board”). On 12 April 2022, 76 days after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time.

The Law

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The Applicant is 62 days out of time, which is very substantial in the context of a 14-day period of appeal.

3.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. Length of delay and explanations for the delay.

Length of delay and reasons for the delay

4.  By 9 February 2022, the time to appeal has expired. The application for leave to appeal is 62 days out of time. The breach is very substantial in the context of a statutory time limit of 14 days.

5.  In her supporting affirmation she advanced the following reasons for applying for leave to appeal the Order out of time:

“I am the Applicant herein. I am presently detained by the [Immigration Department] authorities. The decision made by the High Court Judge P Li has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that was a litigant in person & unrepresented. My appeal is out of time as I had no knowledge about how to appeal the decision and needed some assistance to file my appeal. I humbly request the Court to allow my appeal out of time and accept my explanation.”

The Applicant is in custody in Castle Peak Bay Immigration Centre. In short, her explanation for the delay is the delay in communication and suspension of social visits and legal visits caused by the pandemic. Her ground of appeal is procedural unfairness in being denied the opportunity to clarify her case and situation in his country.

6.  I accept without question that there may be delays in communication caused by the pandemic. In her letter dated 31 March 2022, she attributed the delay to suspension of social visits and legal visits which resulted in the delay in the filing of her supporting affirmation by her lawyer. She was not legally represented. The date of her supporting affirmation corresponds with the date of suspension of social visit. I assume in her favour that she had mistaken a voluntary worker in a social visit for a lawyer. I give her the benefit of doubt that the delay of 62 days under the pandemic situation and the fact that she is acting in person and is in custody excusable.

Prospect of success of the intended appeal

7.  The Applicant’s ground of appeal as stated in her summons is that she wished to advance “a new sole ground of appeal”. In her supporting affirmation, she elaborated this new sole ground as “the High Court Judge P Li has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country”.

8.  The Order was made by way of paper determination without a hearing. It is true that the Applicant had no opportunity to make submissions to DHCJ Li about her grounds for judicial review or to clarify her case and situation in his home country. However, it is not impermissible for an application for leave to apply for judicial review to be determined on paper without an actual hearing. There is no procedural unfairness unless the Applicant suffered prejudice as a result of the absence of an actual hearing. For example, she is thereby prevented from pursuing her application the way she has advanced it.

9.  The subject matter of the hearing before DHCJ Li was the decision of the Board. What underlies the Order, which the Applicant sought to appeal, is the absence of a meritorious ground or prospect of success in the intended judicial review. It must be borne in mind that the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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 function of the court in a judicial review is to scrutinize the Board’s decision and intervene only for errors of law, procedural unfairness or irrationality in the decision: see Nupur Mst v Director of Immigration[2].

10.  Given the limited role of the court in an application for leave to apply for judicial review, absent specific grounds or grounds with sufficient particulars, what the court could do was to rigorously examine the decision of the Board and focus on errors of law, procedural unfairness or irrationality in the decision. As the Applicant had advanced no grounds for her application for leave to apply for judicial review in her Form 86 or supporting affirmation, this examination may be carried out in her absence. On the evidence and materials before the court, DHCJ Li considered it appropriate to determine the application on paper without a hearing. That decision was un-reproachable. How can the Applicant now complain about unfairness for having been deprived of the opportunity to clarify her case and situation in her home country when she had not put forward any such specific grounds in her application?

11.  Furthermore, it is for the Board or the Director to make finding of the factual basis in support of the Applicant’s application for non-refoulement protection and not for the court in a judicial review of the Board’s decision. The Board has set out the Applicant’s case and its finding. These are succinctly summarized in paragraphs 2 to 10 and paragraphs 13 to 15, respectively, of the Form Call-1. In gist, the Applicant’s claims for non-refoulement protection is based on her fear of being harmed by the police for having made a report against a high ranking police officer. However, the Board found numerous inconsistencies between the Applicant’s evidence before the immigration officer and that before the Board which led the Board to the conclusion that she was an untruthful witness. It found that she would not be subject to any real risk of harm if refouled to her home country, Mongolia. As a result, the Board found that the Applicant had failed to prove the factual basis in support of her claim for non-refoulement protection and dismissed her appeal. All these are finding of facts solely within the province of the Board.

12.  In paragraphs 16 to 19 of the Form Call-1, DHCJ Li gave the following reasons for refusing her application for leave:

“16. The applicant filed the leave application for judicial review on 25/9/2019. She did not specify any grounds in her affirmation.

17. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the TCAB decision is irrational. The finding of facts is the duty of the TCAB. The applicant had not made specific complaint of any error in the decision of the TCAB.

18. The adjudicator had analyzed the evidence in detail. She disbelieved the applicant. She was not persuaded that the applicant had told the truth. I agree with the findings. The inconsistencies showed that the applicant was not credible.

17. In my judgment, there is no error of law or procedure. The decisions are reasonable.”

13.  I have carefully examined the Form Call-1. I am satisfied that DHCJ Li had rigorously examined the Decision, the papers and the evidence with anxious scrutiny. I am also satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness. DHCJ Li was satisfied that the Board’s decision had not been so vitiated; the intended judicial review had no prospect of success; and made the Order. The Order accords with the established legal principles applicable to judicial review. I also agree with that conclusion.

14.  Now, apart from a vague suggestion of “clarify my case”, the Applicant gave no particulars as to what facts she wished to clarify and which had not been taken into consideration or ignored by the Board. She is not seeking to adduce fresh evidence about additional facts. The word “clarify” suggests that those facts were already before the Board and she wished to highlight or elaborate on them for DHCJ Li’s consideration. She never advanced those “clarifications” in her grounds.

15.  On the evidence, the Board found the Applicant untruthful and rejected her evidence. These are finding of fact solely within the province of the Board.  As the function of the court in a judicial review is limited to intervening only for errors of law, procedural unfairness or irrationality, it is not open to DHCJ Li to intervene the Board’s decision by exploring into those “clarifications”. In other words, even if the Applicant had an opportunity to address or had actually addressed DHCJ Li about those “clarifications”, it would not have been open to the court to intervene. Thus, with or without being afforded the opportunity to make clarifications before DHCJ Li, the Applicant’s intended judicial review had no realistic prospect of success. And for that reason, neither has her intended appeal against DHCJ Li’s decision in refusing her application for leave.

Prejudice to the respondent

16.  The prejudice to the proposed respondent and to public administration is obvious, if a challenge is allowed to proceed in the absence of an arguable ground of appeal with some prospect of success. The intended appeal is an abuse of legal process and would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

17.  Even condoning her delay, the Applicant’s intended judicial review has no prospect of success. It is a clear abuse of legal process to challenge a decision without proper and arguable grounds of appeal and which is doomed to fail. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. For all these reasons, the application for extension of time to appeal is refused.