RE LAMA MINA

CAMP 40/2022

[2022] HKCA 452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 40 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 568/2019)

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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 P Li (“the Judge”) dated 25 January 2022 refusing to grant an extension of time to appeal against the Judge’s decision dated 29 September 2021, in which the Judge refused leave for the applicant to apply for judicial review against the decision of the Director of Immigration (“the Director”) dated 16 April 2018 (“the Director’s Decision”) and the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 14 February 2019 (“the Board’s Decision”) by which the applicant’s non-refoulement claim and appeal were both refused.

Background

2.  The applicant is a national of India.  She arrived in Hong Kong on 25 September 2015 as a domestic worker, but she overstayed and she surrendered to the Immigration Department on 22 April 2016.  The applicant thereafter lodged a non-refoulement claim on 7 April 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by a man named Gopal Rai.  The details of the applicant’s claim have been summarised by the Judge at [2] to [8] of his decision (“the CALL‑1 Form”)[1].

4.  By a Notice of Decision dated 16 April 2018, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk^[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 28 November 2018, the Board dismissed the appeal on 14 February 2019.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board rejected the applicant’s claims, which it did not find to be credible or established on the evidence before it.

The Judge’s decision

6.  The applicant filed a Form 86 on 27 February 2019 seeking to judicially review the Director’s Decision and the Board’s Decision without setting out any grounds of review.  In her supporting affirmation, she complained that she was unrepresented in the appeal before the Board, and that there was no language assistance provided.   

7.  After summarizing the facts and background of the case and giving due consideration to the Board’s Decision and the Director’s Decision, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [18] of the CALL‑1 Form:

“13.   The applicant filed the leave application for judicial review on 27/2/2019. In her affidavit, she made various complaints as follow:

(a) The applicant complained that she was not represented during the appeal. She had no legal assistance in processing the appeal and the leave application.

(i)    A claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.[6]

(ii)   The applicant had legal assistance from DLS in preparing her claim to the Director. At that time, she must be aware of the version of facts in the written representation dated 7/4/2017. She should have sought advice from the DLS about the consequence of giving another version in the NCF.

(iii)  She was allowed time to explain in the TCAB hearing. She was shown her statements and the record of interview. Given the circumstances, I do not find any irregularity even though she was not represented before the TCAB.

(b)  The applicant pointed out that there was no language assistance provided. She had difficulty understanding the appeal bundle which was in English.

(i)    The decision of the Director was the most important document in the appeal bundle. It was sent to the Duty Lawyer Scheme as a matter of practice. I am sure the DLS had translated the decision to the applicant.

(ii)   The NCF and the record of interview were translated to her at the time when compiled. She should be able to understand the content. [7]

(iii)  The applicant should seek assistance from others according to her resources. There is no duty on the part of the Director to supply translated documents. In fact, there was an interpreter in the TCAB hearing. Had there been any difficulties, she should have sought assistance from the adjudicator during the hearing.

(iv)  The applicant submitted a ten-page-typewritten affidavit in English for the leave application. She was able to find language assistance by herself.

(v)   The applicant was able to answer the questions put by the adjudicator. There was no record of any complaint. This showed that she understood the TCAB proceedings.

(c)  She complained that she could not fully understand the reasoning of the adjudicator as the decision was not translated to her. This made the preparation of the leave application more difficult. As stated above, the applicant should seek language assistance according to her resources. In fact, she was able to do so. The difficulty in understanding the TCAB decision was exaggerated.

14.  The applicant was absent from the hearing fixed on 23/8/2021. The notice of hearing was sent to her last known address on 23/7/2021. There was no return of mail.

15.  In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. 

16.  The evidence of the applicant was unreliable.  She put forward 2 versions of facts which could not be reconciled. She offered no explanation.  I agree with the findings of the adjudicator who rightly rejected the applicant’s factual basis.

17.  In my judgment, there is no error of law or procedure.  The TCAB decision is reasonable.

Conclusion

18.  The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.”

The present application for extension of time to appeal

8.  The applicant’s address as stated in her Form 86 was at No. 81 Woosung Street, Jordan (“the No.81 Woosung Street Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the No. 81 Woosung Street Address on 29 September 2021.  This letter was not returned undelivered.  

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 29 September 2021.

10.  The applicant took out a summons in the Court of First Instance on 10 November 2021 seeking extension of time to appeal, in which her address was stated to be at Nos. 25-27 Woosung Street.  She stated in her supporting affirmation that she did not receive the CALL-1 Form.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 25 January 2022[6].

12.  By a summons filed on 4 February 2022, the applicant renewed her application for an extension of time to appeal before this court.  In the summons, the applicant stated that she would like to “set aside” the Judge’s decision dated 25 January 2022, being the Judge’s refusal to grant an extension of time for her to appeal against his decision dated 29 September 2021.  Although the application purported to seek leave to appeal against the decision dated 25 January 2022, we shall treat it as a renewed application for an extension of time against the substantive decision of 29 September 2021, by which leave for judicial review was refused.

13.  In her supporting affirmation filed on the same date, the applicant repeated her complaints of language difficulties as well as being unrepresented in the proceedings below.

14.  In the applicant’s written submissions dated 18 February 2022, she contended inter alia that the Judge had been procedurally unfair towards her, and that he had failed to consider her difficulties with language and her lack of familiarity with “the Hong Kong authorities”.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  The applicant has proffered no reason or explanation for the delay in bringing the intended appeal.  Although her address appears to have changed, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with her.  

17.  In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

18.  We have nonetheless proceeded to consider the merits of the intended appeal.

19.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

20.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision or the Director’s Decisions. The applicant has not condescended to any particulars as to on what basis the Board’s Decision or the Director’s Decisions were said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

21.  Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)]. 

22.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

23.  As to the applicant’s complaint that she was not proficient in legal procedure and English, it is trite that a lack of knowledge in legal procedure is not a valid excuse for non-compliance with the relevant rules and deadlines.  Further, we note that the applicant has managed both in the court below and before this court to file affirmations and submissions in coherent English.  It is clear that the applicant has all along had access to language assistance, and there is thus no merit in her complaint that the court did not provide a translation of the CALL-1 Form to her in her native language.

24.  We also note that the applicant has had the benefit of legal representation from the Duty Lawyer Service in presenting her case to the Director, including the submission of her non-refoulement claim form and at her screening interview.  This court has repeatedly held that the high standards of fairness applicable do not require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  It suffices for legal representation to be provided at the initial stage, with subsequent legal representation being provided on a merits basis.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

25.  For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 4 February 2022 is accordingly dismissed.