RE SORIANO DEBBIE MANALO

CAMP 18/2023, [2023] HKCA 1227

On Appeal From [2022] HKCFI 531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 18 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2172 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 23 February 2022, DHCJ K. W. Lung (“the Judge”) refused to grant leave for the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (“RHC”), 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.

2.  On 20 April 2022, the applicant took out a summons to apply for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 1 June 2022.

3.  On 16 January 2023, the applicant filed a summons in CAMP 18/2023 (“the Summons”) with the Court of Appeal for extension of time to appeal against the JR Decision.  She lodged her written submissions on 30 January 2023.

4.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

5.  The applicant is a national of the Philippines.  She entered Hong Kong as a visitor and subsequently overstayed from 2 September 2014.  She was arrested by the police on 22 February 2016.  On 24 February 2016, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband.  The factual background of this case was succinctly summarised by the Judge at [4] – [5] of the JR Decision ([2022] HKCFI 531).

6.  By a Notice of Decision dated 21 February 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], BOR 3 risk[2], torture risk[3], and persecution risk[4].

7.  The applicant appealed against the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  She attended an oral hearing on 9 July 2018. By its decision dated 2 October 2018, the Board dismissed the appeal.  The Board found inconsistencies in the applicant’s evidence and considered that the applicant’s claims are not credible.  It also noted that for a lengthy period of her stay before her arrest, she had not made any enquiries from anyone as to how to obtain protection.  The Board rejected the applicant’s claim on all applicable grounds and dismissed the appeal. 

Application for leave to start judicial review

8.  On 9 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the decision of the Board.  She did not put forward any specific grounds for her intended challenge.

The JR Decision

9.  The Judge considered the application on paper as the applicant did not request an oral hearing.  After due consideration of the decision of the Board, the Judge refused to grant leave for the applicant to apply for judicial review for reasons set out in [15] to [17] of the JR Decision:  

“15.  The applicant is unable to state any valid challenge against the Board’s Decision.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Application for extension of time to appeal against the JR Decision

10.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 20 April 2022 for an extension of time to appeal.  That was dismissed by the Judge on 1 June 2022. Hence, the Summons to this court.

Discussion

11.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

12.  As for (1), the applicant was 6 weeks late when she applied to the Court of First Instance for extension of time to appeal, which is a substantial delay.  However, her delay in applying to the Court of Appeal was even more serious.  Pursuant to Order 59, rule 14(3) of RHC, where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal.  The application for extension of time to appeal was refused by the court below on 1 June 2022.  She was late for about 7 months when she made the present application to the Court of Appeal on 16 January 2023.  

13.  As for (2), the reasons for the delay in applying to the Court of Appeal, the applicant explained in her written submissions that she did not receive the decision from the court and does not know the court procedure.  First, the court had sent a notice of handing down decision to the applicant on 24 May 2022 notifying her that the judgment will be uploaded to the Judiciary website within the same day of handing down.  Moreover, the court had sent the decision dated 1 June 2022 by post to the applicant’s address as stated in her affidavit filed on 20 April 2022.  It is noted that the applicant’s address stated in her said affidavit is different from her address as stated in her present application, but she did not file a notice of change of address with the court.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]).  Finally, ignorance of procedure is not a reason for non-compliance of the rules as there are avenues for litigants in person to make enquiries.  Under the circumstances of this case, the applicant’s explanation cannot justify her substantial delay.

14.  The most important consideration is (3), the prospect of success of the intended appeal from the JR Decision. 

15.  In her supporting affidavit, she stated that her case has not been determined fairly.  She stated the following further contentions in her written submissions:

(1)  She was never provided with proper legal and language assistance and the failure in providing proper assistance to non-refoulement claimant is procedurally unfair.

(2)  The authorities should take into account the real procedural unfairness throughout the case and put public policies of trying to dispose of non-refoulement claims as quickly as possible aside.

(3)  If a litigant has not been informed fully of her right and given opportunity to be heard with such assistance, it cannot be said that the assistance cannot be of any use.

(4)  The discriminatory act of the authorities towards non-refoulement claimants to quickly dispose of non-refoulement cases is unacceptable and is detrimental to the spirit of the judicial system.

16.  In the present case, the applicant had interpretation services at the appeal hearing before the Board.  The high standard of fairness required by law does not entail interpretation services being made available to an applicant throughout the period she desired: Re Gurung Sagar [2019] HKCA 658. 

17.  As for the ground relating to the lack of legal representation, the applicant was assisted by the Duty Lawyer Scheme in presenting her case to the Director of Immigration.  The Court of Appeal has repeatedly stated that an applicant in a non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal[2018] HKCA 249 at para 21). 

18.  Pursuant to Order 53 rule 3(3) of RHC, the judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application.  As the applicant did not request an oral hearing in her Form 86, the Judge was entitled to determine her application on paper.  There is no basis for her to complain that she did not have the opportunity to be heard.

19.  For these reasons, the alleged procedural unfairness has no merit.  

20.  In the present application, the applicant failed to identify any errors of law, or failure to take account of relevant matters already placed before the court, or any other mistakes in the JR Decision.

21.  We are satisfied that the Judge had reviewed the decision of the Board with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.  

22.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 16 January 2023.