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CAMP 97/2018
[2018] HKCA 667
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO CAMP 97 OF 2018
(ON APPEAL FROM HCAL 476/2017)
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| RE: |
KARKI SAJANI |
Applicant |
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Before: Hon Cheung JA and Barma JA in Court
Date of Judgment: 5 October 2018
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 24 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 5 May 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 23 February 2015 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Nepal. She entered Hong Kong on 22 October 2009 illegally and was later arrested by the police on 23 October 2009. After her arrest, she lodged a non-refoulement claim on 26 October 2009.
3. The applicant’s claim was based on threats by the Maoist party in Nepal. The details of the applicant’s claim have been summarised by the judge at [3] to [6] of the CALL-1 Form.
4. By a Notice of Decision dated 23 February 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim. The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].
5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 26 January 2016 the Board dismissed the appeal on 5 May 2017 (“Board’s Decision”).
6. At [8] of the Board’s Decision, the Board found that the applicant “is not a reliable witness and that her answers were not logical”. The Board was also satisfied at [14] that state protection would be available for the applicant and at [28] – [29] that internal relocation would be viable.
7. After the Board’s Decision, by a Notice of Further Decision dated 17 May 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against her. It appears that there has been no appeal against the Further Decision. In any event, the Further Decision was not the subject matter of the leave application.
The deputy judge’s decision
8. The applicant filed a form 86 on 2 August 2017 which contained the following grounds for judicial review:
(1) the Board has unlawfully fettered his discretion by refusing her appeal;
(2) the Board acted in a procedurally unfair manner in dealing with her appeal;
(3) the Board’s decision in refusing her appeal is unreasonable or irrational in public law or the result of procedural error or unfairness; and
(4) the Board had failed to meet the greater care and duty owed to a self-represented claimant.
9. In the affirmation in support of the leave application dated 2 August 2017, the applicant advanced numerous grounds for judicial review which are summarised below:
(1) lack of language assistance and time to prepare for the hearing before the Board;
(2) the Board erred in holding that the applicant was not credible. The applicant had in fact answered the questions honestly; and
(3) the Board relied on outdated information and information based on hearsay.
10. 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 give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 12 to 18 of the CALL-1 form:
“12. I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application. I have considered the applicant’s affirmation, her grounds and complaints within as well as the adjudicator’s decision. I find no fault with her decision and I find no substance in the grounds of this application.
13. The supporting affirmation lists the following as grounds for seeking leave:
(1) procedural unfairness/lack of language assistance and time to prepare for appeal;
(2) error by the adjudicator; and
(3) procedural irregularity/relying on out of date, hearsay information.
14. The first ground has no merit. The applicant has not been prejudiced in any way prior to the appeal. The applicant was legally represented during the appeal and cannot legitimately complain she was confused during it.
15. The second ground has no merits either. The adjudicator does not find her credible and has given her reasons for that conclusion. I will not interfere with that finding of fact.
16. The adjudicator has cited the information she has referred to in her decision. It is obviously, by in large, officially recognised and not hearsay. In any event, this last ground contains no particulars which renders it without merit.
17. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.
18. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”
11. According to the court record, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicant on 24 May 2018.
Application for extension of time to appeal and grounds for appeal
12. Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal. She failed to do so. By a summons dated 4 July 2018, she applied for an extension of time to appeal. Her application for extension of time is supported by an affirmation dated 4 July 2018 where she stated that:
“I crave leave to be granted to appeal from the [the order dismissing the leave application dated 24 May 2018]…the order was not received until 27/6/2018. Postal delay”
13. The applicant did not provide any grounds for appeal in the summons or affirmation.
14. Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 26 July 2018, the applicant was debarred from lodging any written submission and the application was dealt with on paper on the basis of the materials already filed before the court.
Discussion
15. It seems to us to be highly unlikely that postal delay caused the applicant to receive the CALL-1 form more than 1 month after it was posted to her. We cannot accept that the applicant was being truthful in her explanation for the delay in lodging the appeal.
16. In any event, the intended appeal is bound to fail as the applicant has wholly failed to identify any error allegedly made by the judge. As noted, no grounds of appeal have been identified. We will not grant extension of time for a hopeless appeal. The summons of 4 July 2018 is dismissed accordingly.
17. We are also of the view that the application is totally without merit. Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.
| (Peter Cheung) |
(Aarif Barma) |
| Justice of Appeal |
Justice of Appeal
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The applicant acting in person
[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.
[2] 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.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[4] This refers to the risk of violation of the right to life under article 2 of the Hong Kong Bill of Rights.
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