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

CACV 295/2019
and CAMP 195/2019

[2019] HKCA 1178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 295 OF 2019

(ON APPEAL FROM HCAL 1622/2018)

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BETWEEN

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 195 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1622/2018)

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JUDGMENT

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

Introduction

1.  On 28 June 2019, the applicant filed a notice of appeal under CACV 295/2019 against the decision given by Deputy High Court Judge K W Lung (“the Judge”) on 13 June 2019. 

2.  As the appeal was brought out of time, Lam VP directed as follows on 24 July 2019:

“ 1. The Appeal is stayed pending the consideration of the application for extension of time as per the submission of 16 July 2019 in accordance with the following directions.

      2. Subject to the applicant’s compliance with the following directions, the application for extension of time shall be proceeded as follows:

(1) The Applicant shall issue a CAMP application for extension of time by lodging a summons for that purpose by 14 August 2019;

(2) The submission of 16 July 2019 shall be treated as submissions in support of the summons;

(3)     If the Applicant does not comply with paragraph 2(1), she would be deemed to have withdrawn her application for extension of time. In that event, the appeal shall be automatically dismissed on 15 August 2019.”

3.  The applicant issued a summons on 14 August 2019 under CAMP 195/2019 seeking for an extension of time to appeal.

4.  Notwithstanding that the applicant requested in her notice of appeal to have an oral hearing, after considering the documents we are of the view that it is appropriate to determine the present application based on written submissions without a hearing: see Order 59, Rule 14A(1) of the Rules of the High Court (Cap 4A) (“RHC”).

Background

5.  The applicant is a national of Nepal. She arrived in Hong Kong on 14 February 2015 and was granted permission to remain as a visitor until 15 February 2015. She did not depart upon the expiry of her permission to remain and overstayed illegally. She was arrested by the police on 24 November 2015. She raised her claim for non-refoulement protection on 27 November 2015.

6.  The applicant’s claim was based on the fear that, if refouled, she would be harmed or killed by her abusive husband. The factual background was succinctly set out in [3] of the Form CALL-1 ([2019] HKCFI 1536).

7.  By a notice of decision dated 29 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds. The decision covered the risk of the violation of the absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights Ordinance (particularly the BOR 3 risk[1] and the BOR 2 risk[2]), the persecution risk[3], and the torture risk[4]. 

8.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claim Petition Office (“the Board”). A hearing was held on 23 May 2018 and the applicant gave evidence before the Board. Having heard the applicant, the Board found that her evidence was vague and she was not a credible witness. On the totality of the evidence, the Board found no substantial ground for believing that the applicant would face a real risk of harm if refouled. By a decision dated 1 August 2018, the Board determined the appeal against the applicant.  

The Judge’s decision

9.  On 13 August 2018, the applicant applied to the court for leave to apply for judicial review against both the decisions of the Director and of the Board. Her Form 86 contained no grounds for judicial review. She put forth 3 grounds in her affirmation filed on the same day.  Briefly stated, the first ground concerned the lack of translation of the hearing bundle and the Board’s decision, and the remaining grounds concerned the lack of legal assistance in her appeal. The details of the grounds for judicial review were set out in [10] of the Form CALL-1.

10.  An oral hearing was held before the Judge on 14 February 2019.

11.  The Judge refused to grant leave for the applicant to apply for judicial review. In reliance on the judgment of this Court (differently constituted) in Re Moshsin Ali [2018] HKCA 549, the Judge held that the application for leave to apply for judicial review against the Director’s decision failed in limine. For the following reasons, the Judge also took the view that the proposed judicial review against the Board’s decision had no reasonable chance of success:

“ 15. The applicant appeared before me. She confirmed that she had no complaint against the Immigration officer or the Adjudicator. The Director’s Decision was explained to her by her lawyer and the Board’s Decision was explained by her friend. I put the Board’s findings in paragraph 8 above to her for her comments. She said that she had no comments.

16. It is obvious that the Board, for the reasons that it had given, did not accept the applicant’s facts of the claim. The applicant’s claim cannot possibly succeed without any fact to support it.

17. Grounds (1) has no relevance in light of what she said before. It fails

18. Grounds (2) to (3) fail in light of the Court of Appeal’s decision in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 that the applicant was legally represented at the screening stage and she does not have the absolute right of free legal representation at every stage of the proceedings [22].

19. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

Application for Extension of Time

12.  As mentioned above, the applicant filed a summons on 14 August 2019 seeking an extension of time for appealing. An affirmation in support was also filed on the same day.

13.  In her notice of appeal filed under CACV 295/2019, the applicant stated:

(1) The Judge failed to consider the significance and level of unfairness caused by the lack of language assistance to her as a litigant (paragraph 1).

(2) The Judge erred in failing to consider her ground regarding the lack of language assistance (paragraphs 2 & 4).

(3) The Form CALL-1 had not been explained to her by a qualified interpreter, and she was thereby deprived of her right to appeal (paragraph 3).

(4) She therefore requested for translation and language assistance so as to acquire a better understanding of her case as this is one of the primary rights of a litigant. She also requested for an oral hearing with an interpreter arranged (paragraph 5).

14.  In her written submissions lodged on 19 July 2019, in addition to repeating her grounds of appeal, the applicant stated that:

(1) She was not aware of the time limit for lodging an appeal;

(2) The deadline should not be calculated from the date of the order, but instead from the date that the order was deemed to be received by the applicant; and

(3) The application for an extension of time should not be refused given the language barrier and the cultural differences.

Legal principles

15.  Under Order 53, Rule 3(4) of RHC, any appeal against the refusal to grant leave to apply for judicial review must be made to the Court of Appeal within 14 days after such refusal.

16.  It is well-established that, in the consideration of the application for leave to appeal out of time, the Court will take into account the following factors in the exercise of its discretion (see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at 107; Re Monjur Hossain [2018] HKCA 476; Re Saqlain Muhammad [2018] HKCA 346):

(a) The length of the delay;

(b) The reasons for the delay;

(c) The chance of success of the intended appeal; and

(d) The prejudice to the other party.

17.  The arguability of the intended appeal is an important consideration in an application for extension of time, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhamma, supra.

18.  On previous occasions, this Court has repeatedly set out the general principles which are applicable generally to appeals or intended appeals in non-refoulement cases. Such general principles are to be borne in mind in assessing the prospect of success of the intended appeal.

Discussion

19.  The applicant was only late for one day in filing her notice of appeal. The length of delay was short. On this occasion, we are prepared to proceed on the basis that that the delay was excusable.

20.  Hence, the crucial consideration in this application is whether the applicant can show that there is a reasonable prospect of success in the intended application for judicial review.

21.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse finding on her credibility. As this Court (differently constituted) has explained in Re Marshall Bill O [2019] HKCA 1031, the assessment of the assessments of risk of harm and credibility are within the province of the Board. The Court will not intervene with such findings unless they contained errors on public law grounds. During the hearing before the Judge, the applicant confirmed that she had no complaint in respect of the findings of the Board. In such circumstances, the Judge found that the applicant had no reasonable chance of success in the intended judicial review.

22.  Her grounds of appeal revolved around the lack of language assistance. It has been held that the high standard of fairness required by law would not entail an interpretation service to be available at any time as an applicant desired: Re Hasmi Rizwan Imran [2018] HKCA 439.

23.  She gave evidence before the Board and the hearing was conducted with the assistance of a Nepali interpreter. She told the Board that the Decision of the Director had been explained to her as had the materials in the hearing bundle, see [52] of the Board’s Decision. The Board paid close attention to her evidence and justifiably sought her comments on various concerns which she failed to address, see [49] to [64] of the Board’s Decision and analyzed the same at length with great care, see [66] to [75], before making its findings. 

24.  The applicant confirmed to the Judge that she had obtained help from her friend in explaining the Board’s decision to her. In our view, the Judge was entirely correct in rejecting the applicant’s grounds for judicial review. There is no reasonably arguable basis to challenge either the Board’s or the Judge’s decision on the basis that they had not been translated to the applicant. 

25.  Having considered the materials available before us, we agree with the Judge that leave to apply for judicial review should be refused. We do not see any prospect of success in the intended appeal.

26.  It would be futile to extend the time for a hopeless appeal. We refuse to grant leave for the applicant to appeal out of time. The summons filed on 14 August 2019 under CAMP 195/2019 is dismissed accordingly.

27.  In absence of leave to appeal out of time, the appeal brought by the applicant under CACV 295/2019 is incompetent. The appeal should therefore be struck out and dismissed. We order accordingly.