RE URGEL NARCISA ANADIA

CAMP 142/2019

[2019] HKCA 1225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 142 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 664 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By a decision dated 30 January 2019 (“the Decision”), Deputy High Court Judge Josiah Lam (“DHCJ Lam”) refused to grant to the applicant an extension of time for application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 14 July 2017 and dismissed her application for leave to apply for judicial review.

2.  On 21 June 2019, Deputy High Court Judge K.W. Lung (“DHCJ Lung”) refused to grant leave to the applicant for leave to appeal out of time against the Decision (“the Leave Decision”).

3.  The applicant now applies to this Court by way of a summons dated 25 June 2019 for leave to appeal out of time against the Decision. Pursuant to the directions of the Registrar of Civil Appeals given on 28 June 2019, the applicant filed her written submissions on 15 July 2019. The Registrar further directed that this Court will decide whether to determine the application on paper. As it is appropriate to do so, this application shall be determined on paper accordingly.

Background

4.  The applicant is a national of the Philippines.  She arrived in Hong Kong on 22 January 2000 and was permitted to remain for employment as a domestic helper until 22 January 2002 or two weeks after the termination of contract, whichever was earlier. Her employment contract was prematurely terminated on 16 February 2000. She did not depart and was arrested by the police for overstaying on 23 May 2010. She lodged her torture claim on 9 June 2010 and the same was rejected on 20 January 2012. She raised her non-refoulement claim by way of letter which was received by the Immigration Department on 24 October 2013. The applicant’s claim was based on her alleged fear that she would be harmed or even killed by the gangsters of a drug syndicate as she acted as an informant when working for the drug syndicate.  The applicant further alleged that she was threatened by her ex-cohabitee Ronnie that she would be killed if she caused him any troubles as Ronnie had a family with another woman.

5.  By a Notice of Decision dated 16 August 2016, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 3 risk and the persecution risk. Please see para 10 of the Director’s 1^st decision. Her torture claim had already been rejected in 2012: see para 4 above. 

6.  The applicant appealed to the Board.  The applicant did not appear at the hearing fixed on 11 May 2017. On 12 May 2017, the Board received the Notice of Further Decision rejecting the applicant’s claim on BOR 2 risk. According to the Director, the applicant did not submit any additional evidence to substantiate her claim on BOR 2 risk. 

7.  On 14 July 2017, the Board dismissed the applicant’s appeal on paper (“the Board’s Decision”).  The Board found that the applicant’s claim was merely based on her bare assertions that the police and other authorities in the Philippines would not offer her any assistance and protection from the harms of the drug gangsters or Ronnie.  There was no evidence suggesting the applicant and/or her family had suffered any physical and/or mental harm before. The Board also found no evidence of any state instigation or acquiescence. In any event, internal relocation would be a viable option for her. For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds except torture risk ground (please see paras. 85 to 87 of the Board’s Decision).

DHCJ Lam’s Decision

8.  On 18 April 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision.  The leave application was made outside the 3-month limitation period and she gave no reason in the Form nor her supporting affirmation for her delay.  

9.  At the hearing before DHCJ Lam, she explained she did not receive the Board's decision sent to her home address.  She said the mails in her building were always in a mess.  She only got notice of the Board’s decision in April 2018 when she reported to the Immigration Department, though she had to report there every two weeks.  After being aware of the Board’s decision, she asked around for assistance and filed the current application for leave for judicial review on 18 April 2018.

10.  The applicant further advanced the following grounds for relief for her intended appeal:

(1) the Board had unlawfully fettered its discretion by refusing her appeal on the grounds that it did not satisfy the requirement;

(2) the Adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3) the Board’s Decision was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness;

(4) the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) lack of language assistance throughout the hearings before the Director and the Board; and

(6) the Board had relied on source of news which was not officially recognized or was simply hearsay. The lack of credible source of information resulted in the groundless speculations that it was safe for her to return back to her country of origin.

11.  The hearing took place before DHCJ Lam on 24 July 2018 and a Tagalog interpreter provided service to her in court. On 30 January 2019, DHCJ Lam gave his decision refusing to extend the time for the applicant to apply for judicial review and dismissing the application. After summarizing the background of the case, as well as the decisions of the Director and the Board, DHCJ Lam gave the following reasons at [35] – [49] for his decision (without quoting the footnotes):

“Discussion

35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

Late application for leave for judicial review

37. Order 53 Rule 3(1) of the Rules of the High Court reads: –

(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

38. Order 53 Rules 4(1) and (2) of the Rules of the High Court read: –

(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

39. It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is a good reason for extending time. The Applicant must provide good reasons for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review. If the court is not satisfied that there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.

40. In the present case, the Board’s decision was issued on 14 July 2017. The Applicant only applied for leave for judicial review nine months later on 18 April 2018. Excluding the 3-month grace period for filing, she was still six months late.

41. The Applicant said she had not received the Board's decision sent to her reported address in July 2017. She said the mails in her building were always messy. She had to report to the Immigration Department every two weeks. Yet the Immigration Department only informed her of the result nine months later in April 2018.

42. The Board's decision was sent to the Applicant in July 2017. There was no evidence of undelivered or returned mail. The Applicant complained the mails in her building were messy and she learnt of the Board's decision only in April 2018 from the Immigration Department staff. The Applicant raised such bare assertion only in court when she was asked why she was late in her application for leave for judicial review. Nothing of that was stated in her affirmation or Form 86. I do not accept the Applicant's explanation for her lateness.

43. The Applicant was late in her application for leave for judicial review by six months. There was no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. Discipline should be maintained in the area of public law. The Applicant's application for leave for judicial review involved no issues of general importance and her argument had no merits at all (see below).

44. The Applicant mentioned she did not have legal representation after the Director's decision dated 16 August 2016.

45. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

46. The Applicant raised her language problem. In the current application, someone helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while she was still represented by the Duty Lawyer Service and during the screening process before the Director. [The Applicant chose to be absent from the appeal hearing before the Adjudicator.] The Applicant had much exaggerated her language problem.

47. The Applicant complained she got the appeal bundle late so she could not prepare well for the hearing. However, the Applicant did not present herself in the appeal hearing scheduled for 11 May 2017. There was no evidence that her absence from the Board hearing was inadvertent or related to her alleged prejudice in preparation.

48. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case before the Director. The Applicant chose to be absent from the appeal hearing before the Board. Nevertheless, the Adjudicator considered the Applicant's claim carefully. The Adjudicator was acquainted with the facts and applied the law correctly. She had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated.

Conclusion

49. The Applicant's application for leave for judicial review is unreasonably late. There are no justified circumstances to oblige the court to consider her late application. I therefore dismiss the application.”

12.  By a summon dated 11 February 2019, she applied for leave to appeal against the Decision made by DHCJ Lam out of time. In her supporting affirmation, she explained that she did not receive the court order and the Decision within 14 days and she urged the court to give her a reasonable opportunity to present her case.   In her written submissions, she contended that the Decision was very important to her as it had effectively disposed of her application for leave to apply for judicial review and she would be subjected to removal order.

DHCJ Lung’s Decision

13.  The summons was heard before DHCJ Lung on 11 April 2019. At the hearing, DHCJ Lung explained the decisions of the Director and the Board to the applicant and asked for her comments. The applicant only submitted that as she had been in Hong Kong for 19 years, she did not want to leave.   In the absence of any good explanation for her delay in applying for leave for judicial review and any valid grounds to support her intended appeal, DHCJ Lung dismissed the summons accordingly.

The Renewed Application

14.  By the summons dated 25 June 2019, the applicant seeks leave from the Court of Appeal to appeal out of time against DHCJ Lam’s decision. In the summons and the supporting affirmation filed on the same day, the applicant merely repeated her reasons for delay in applying for leave for judicial review as put forward before DHCJ Lung. 

15.  In her written submissions, she quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submission further referred to section 37ZT of the Immigration Ordinance, Cap. 115, and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge. However, the applicant did not further elaborate how the section could assist her case.

Legal Principles

16.  In Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, the Court of Appeal held that the refusal to extend time for leave to apply for judicial review is interlocutory in nature. 

17.  According to section 14AA(1) of the High Court Ordinance (Cap. 4), no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted. Section 14AA(4) further provides that no leave to appeal shall be granted unless the court is satisfied that there is a reasonable prospect of success in the intended appeal, or that there is some other reason in the interests of justice that the intended appeal should be heard. 

18.  In assessing the prospect of success of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purpose of this application, the salient principles are as follows:

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

19.  In our judgment, there is no prospect of success in the intended appeal. It is clear to us that DHCJ Lam was correct in refusing to grant an extension of time for the applicant to apply for judicial review.

20.  The applicant was 6 months late in making the application. The delay was substantial.  We do not accept the applicant’s assertion that she had not received the Board’s decision at her home address and that, when she received it, the time limit for applying leave had already expired. We agree with DHCJ Lam that there was no good reason for the delay.

21.  The applicant did not provide any grounds for her intended appeal and what she stated in her written submissions cannot be constituted valid grounds of appeal. In the absence of any proper grounds for disturbing the analysis of DHCJ Lam, this Court should not intervene.  

22.  In the circumstances, it would be futile to extend the time for a hopeless appeal to be brought. Accordingly, we refuse the application for leave to appeal, and dismiss the applicant’s summons.

23.  Since the application is totally without merit, we further make an order under Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A) that the applicant may not request our determination to be reconsidered at an oral hearing.