RE SHERPA YANGJI

CAMP 173/2019

[2021] HKCA 369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 173 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 902 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam given on 17 April 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 13 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  She entered Hong Kong on 22 October 2013 as a visitor and was permitted to remain until 29 October 2013.  She overstayed and was arrested by the police on 23 June 2014.  She lodged a non-refoulement claim on 25 June 2014. 

3.  The applicant’s claim was based on threats from people in her village and her uncle. She also claimed that upon her return she will not receive proper treatment for her medical conditions and that she will become a social outcast and cannot sustain a living.  The details of the applicant’s claim have been summarised by the judge at [2] to [13] of the CALL-1 Form.

4.  By a Notice of Decision dated 26 January 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Board.  After a hearing on 21 February 2018, the Board dismissed the appeal on 13 April 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [22 c)] and [23 b)] of the Board’s Decision, the Board found that the applicant is unlikely to be subject to any ill treatment from the villagers or her uncle.  At [24], the Board concluded that medical treatment for her conditions is readily available in Nepal.  At [25], the Board considered that the social stigma from her medical conditions is unlikely to result in ill treatment in Nepal and that her desire to receive treatment in Hong Kong is not in itself a valid ground for seeking non-refoulement protection.  The Board was also satisfied at [28] that state protection would be available for the applicant and at [30] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 23 May 2018 which contained no ground for seeking relief.

8.  In her affirmation filed on the same day, the applicant complained there were no legal representation and language assistance after the Director's decision.  She did not understand the Director’s Decision because it was not translated to her. The hearing bundle was provided to her shortly before the hearing and the documents therein had not been translated for her.  The applicant was unable to properly prepare for the appeal.  

9.  The applicant further submitted that the Board did not give proper explanation for holding that her paternal uncle was not interested in locating her.  The Board ignored the COI information that it is almost impossible to be admitted to a public hospital without a bribe and the fact that the general hospitals in Nepal are poorly equipped to treat her.  The Board’s Decision was unfair and unreasonable.

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 grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [29] to [40] of the CALL-1 Form:

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

30. 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.’

31. The Applicant complained there was no legal representation after the Director's decision. She had been represented by the Duty Lawyer Service up to the Director's decision dated 26 January 2017.

32. 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.

33. The Applicant raised her language problem. In the current application, her affirmation and Form 86 were prepared in English. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, she was assisted by qualified interpreters while she was represented by the Duty Lawyer Service and also before the Director and the Adjudicator in the screening process. The Applicant had much exaggerated her language problem.

34. The Applicant complained she received the appeal bundle only shortly before the Board hearing.

35. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. There was no evidence the rules had been breached.

36. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

37. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

38. The Applicant said the Adjudicator’s decision was unfair and unreasonable.

39. 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 Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

40. The Applicant's complaints are not reasonably arguable. She has no realistic prospect of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal but she did not do so.  By a summons dated 14 May 2019, the applicant sought leave to appeal out of time.  Her application was dismissed by DHCJ K.W. Lung on 12 July 2019.

12.  By a summons dated 25 July 2019, the applicant sought leave to file a notice of appeal against the decision by DHCJ K.W. Lung.  However, the proper application for the applicant to make is a renewal before this court of her application for leave to appeal out of time against the judgment by the judge in the CALL-1 Form.  We therefore treat the application in the summons dated 25 July 2019 as such.

13.  In the summons she advanced the following grounds of appeal:

(1) extension of time should be granted on a discretionary basis because she was not aware of the need to “attend the court”;

(2) the applicant did not have the time and resources to prepare grounds of appeal because she lacked language and legal assistance.  She also did not understand the judgment;

(3) the judge failed to acknowledge her language difficulty.  The CALL-1 Form was not translated for her;

(4) the fact that there are no other avenues for a non-refoulement claimant to seek an appeal against a decision made purely against credibility is procedurally unfair; and

(5) for the applicant to better understand the judgment, there should be an oral hearing with interpretation service.

14.  In her skeleton submissions dated 15 August 2019, the applicant expanded on the grounds provided in the summons dated 25 July 2019.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

16.  We first note that the applicant has not provided any cogent explanation for her delay in bringing the intended appeal.

17.  In relation to the ground based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

18.  As for the ground based on the lack of language assistance, we note that the applicant was able to provide documents to the court in English in which she identified the alleged errors committed by the judge and made submissions on those alleged errors.  It is clear that either she is reasonably proficient in English or has access to language assistance.  We are not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance.

19.  In the summons dated 25 July 2019, the applicant contended that there was no other avenue for a non-refoulement claimant to seek an appeal against “a decision” made purely against credibility and that it is procedurally unfair.  The applicant did not identify the relevant decision or provide further particulars for this ground. 

20.  In any event, we do not accept that the Board dismissed her appeal because of the lack of credibility.  The Board has apparently accepted at [23 a)] of its decision that her paternal uncle sexually abused her for many years.  The Board found that there was no evidence to suggest that her uncle would continue to look for her.

21.  The Board also found that the country of origin information (COI) suggests she can receive proper treatment for her conditions upon her return.  Although the applicant challenges this finding in the court below, she failed to establish any public law error committed by the Board in arriving at this finding.  We have also considered the Board’s Decision in detail and found that the Board has given adequate reasons for its decision.  We would dismiss this ground as well.

22.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 25 July 2019 is dismissed accordingly.

23.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.