RAI SAMJHANA v. IMMIGRATION TRIBUNAL

HCAL 1168/2023

[2023] HKCFI 2654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1168 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By my Decision dated 21 August 2023 [2023] HKCFI 2158, I dismissed on paper the Applicant’s application for leave to apply for judicial review seeking to challenge the Immigration Tribunal’s dismissal of her appeal against the making of a Removal Order against her. The Tribunal had dismissed the appeal by a Section 53C Notice, without a hearing.

2.  Essentially, the Applicant’s only complaint was that the decision of the Tribunal was “unfair and unreasonable”, but without any explanation as to why that might be so.

3.  I dismissed the Applicant’s application both because (1) she had failed to identify any grounds that she might say were reasonably arguable and sufficient to justify the grant of leave to apply for judicial review, and (2) in any event, I could not see any reasonably arguable public law grounds of review.

4.  Now, by summons dated 11 September 2023, the Applicant applies for leave to appeal, out of time. The application is made 7 days out of time, and the affirmation in support of the application merely states that the Applicant considers my Decision to be “unfair and unreasonable”, though again without identifying why, and also without any attempt to explain the delay.

5.  At the hearing, the Applicant has appeared in person with the benefit of a Nepali/English interpreter.

6.  This is my Decision on the application for leave to appeal.

B.  Background

7.  The following matters suffice by way of background – fuller detail having been canvassed in my earlier Decision.

8.  The Applicant is a Nepalese national who originally came to Hong Kong for employment as a domestic helper. She was last permitted to remain until 7 June 2004. However, she did not depart, and she has been overstaying in Hong Kong since 8 June 2004.

9.  She surrendered herself to the Immigration Department on 14 July 2021. The Applicant has offered no explanation for or description of what occurred in the intervening 17 years (though I note that she has brought her perhaps teenage daughter to Court today).

10.  On 7 March 2023, a Removal Order was issued against her pursuant to section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”). The Applicant appealed to the Immigration Tribunal, but her “Notice of Appeal Against Removal” set out matters really only relevant to a non-refoulement claim (“NRC”) – it being unclear whether or not the Applicant had actually made a NRC. The Tribunal dismissed her appeal without a hearing by a “Notice of Dismissal of an Appeal Determined by the Tribunal under Section 53C” dated 18 April 2023.

C.  The Decision

11.  As I pointed out in my Decision, no proposed grounds were set out in the Form 86, and in the supporting affirmation, the Applicant merely stated “I want to judicial review the refusal decision of the appeal of the immigration Tribunal. This decision is unfair and unreasonable”, but without explaining why that might be so.

12.  I held that to be in breach of RHC Order 53 rule 3(2)(a)(iii), which requires an applicant to set out her grounds of review in the Form 86. Saying that the Tribunal’s decision is “unfair and unreasonable” is but a bare assertion, and I held that the Order 53 requirement could not be met by inserting on the Form 86 a general allegation that the impugned decision is unfair and unreasonable, but without any further details whatsoever. The Applicant’s application, therefore, was liable to be dismissed on that basis alone.

13.  I also held that the documents provided by the Applicant did not disclose any argument concerning the reasonableness or fairness of the Section 53C Notice which might give rise to any arguable ground of review with a reasonable prospect of success. The Director plainly had the power to make the Removal Order against the Applicant, under section 19(1)(b) of the Ordinance. On the basis of her complaints as made to the Tribunal, there was nothing arguably unreasonable in the public law sense for the Tribunal to take the view that the Applicant’s appeal could be dismissed without a hearing.

D.  Applicable Principles

14.  The principles applicable on an application for leave to appeal out of time are settled. In short, the Court will take into consideration the length of the delay, the reasons offered for the delay, the merits of the proposed appeal, and the balance of potential prejudice to the respondent if leave to appeal were to be granted.

E.  This Case

15.  Again, the Applicant has failed in her application to identify any proposed grounds for which he seeks leave to appeal. Again, the Applicant has merely stated that she considers the Decision to be unfair and unreasonable, without identifying any specific alleged unfairness or unreasonableness.

16.  Nor has the Applicant sought to explain any part of the delay, even if it is not a very long delay in bringing application.

17.  At the hearing, the Applicant stated that she did not want to go back to Nepal at the moment, but wanted to stay in Hong Kong. She said it is not safe for her to go back to Nepal. I explained to her that whether or not she should go back to Nepal was not the question arising on this application. I explained to her the basis of my previous Decision, and identified the question to be dealt with by me on this application, and invited any submission she wish to make directed at that question. In response, the Applicant said that she just wanted to let the Court know mainly that it was not safe for her to go back to Nepal.

18.  For the Applicant’s benefit, I might usefully repeat the following matters:

(1)  The Applicant’s application for leave to apply for judicial review flowed from the making of the Removal Order against her.

(2)  That Removal Order was made under section 19(1)(b) of the Ordinance.

(3)  Under that section, the Director of Immigration had the power to make the Removal Order because the Applicant had contravened a condition of her stay (as her own surrender to the immigration authorities essentially accepted).

(4)  When the Applicant appealed to the Immigration Tribunal, the question for that Tribunal was whether there was a proper basis to interfere with the decision of the Director.

(5)  On the facts put forward to the Tribunal, it was open to the Tribunal reasonably to consider that it could dismiss the appeal without a hearing.

(6)  That is because the Applicant put forward facts which could not change the position that she was an illegal immigrant in Hong Kong, having overstayed beyond the permitted period.

(7)  As I pointed out in my Decision, the matters relied upon by the Applicant in the appeal to the Tribunal were really matters relevant to a NRC.

(8)  A person’s ability to assert and establish a NRC can occur notwithstanding the making of a Removal Order against that person.

(9)  In essence, a NRC seeks to establish a reason why the person should not be returned to their home country, notwithstanding a breach of immigration requirements in Hong Kong, and any order that the person be removed or deported from Hong Kong.

(10)  Those questions did not arise on the appeal to the Tribunal.

(11)  Nor did those questions arise in the application for leave to apply for judicial review, or on this application for leave to appeal out of time.

(12)  If those questions are to be dealt with, it would be by way of a different process.

19.  In the circumstances of a fairly short but unexplained delay, and with no merit in the proposed appeal where no proposed grounds of appeal are even identified, I see no purpose in granting additional time within which to seek leave to appeal.

F.  Result

20.  Therefore, the application is dismissed, with no order as to costs.