RE ANA LUSIA

CAMP 531/2022, [2023] HKCA 1241

Intended appeal from [2022] HKCFI 1636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 531 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1085 OF 2019)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 31 May 2022[1] refusing to give her leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation and also lodged a written submission in support of the application.  Further, by a letter dated 15 August 2023, the applicant requests to close her case as she wants to return to her country.    

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decisions of the Director of Immigration (“the Director”) which rejected her non-refoulement claim.

5.  The applicant is a national of Indonesia aged 65.  She last arrived in Hong Kong on 1 August 2011 and was given permission to remain for one month.  She overstayed and was arrested by the police on 5 August 2014.  She later raised a non-refoulement claim based on her fear of being harmed or killed by a loan shark due to her inability to repay her and her husband’s debts.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

6.  By a decision dated 31 March 2015, the Director rejected the applicant’s claim on the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds.  The applicant’s appeal to the Board was dismissed on 7 February 2017.  The applicant’s application for leave to apply for judicial review (in HCAL 43/2017) was dismissed by the Court of First Instance on 27 October 2017.

7.  In the meantime, the Director further considered the applicant’s claim with reference to the BOR 2 risk^[5] ground and by his decision dated 29 May 2017 decided against it.

8.  The applicant appealed the Director’s further decision to the Board.  The Board held an oral hearing on 4 March 2019.  By its decision dated 12 April 2019, the Board dismissed the appeal.  The Board was not satisfied with the credibility and reliability of the applicant and her evidence. The Board also found the applicant’s evidence given at the hearing did not support her submission to the Director that the loan shark had threatened her family members and neighbours and asking for her whereabouts. The Board further considered that, even accepting the applicant’s case, the legal requirements for the BOR 2 risk ground were could not be made out. 

9.  On 23 April 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The grounds of her intended challenge were summarised by the Judge in [15] of the Form CALL-1 as follows:

“(1) The hearing bundle was delivered to her shortly before the hearing and the contents were in English, which she did not understand. Nor could she afford an interpreter herself. Therefore, she was confused at the hearing.

(2) The Board did not notify her by phone upon her request.

(3) The hearing was unfair as she had answered all the questions honestly.

(4) The Board had relied upon source of news, which was not recognized officially and on cases, which were outdated. Therefore, the Board’s findings were groundless and speculative.

(5) It was unfair to have no screening by the immigration officer for the BOR2 risk assessment.”

10.  In the Form 86, the relief sought by the applicant includes “an oral hearing of this application under O. 53, r. 3(3) if leave is not granted on the papers”.  The case was however not listed for hearing.  Instead, on 18 March 2022, the Judge’s clerk wrote to the applicant as follows:

“ We refer to your application for leave to apply for judicial review of the Torture Claims Appeal Board’s Decision. You requested an oral hearing.

          However, due to the COVID-19 pandemic, we will try to avoid attendance in court unless it is not possible to do so. Please submit your written submissions to court within 7 days from the date of this letter. However, if you are of the view that it is impossible to present your case on paper, you should inform the court immediately, stating the reasons. A hearing date will be fixed for you.

          If the court does not receive response from you within 7 days from the date of this letter, the court will proceed to assess your case on paper. A written decision will be sent to you at your last known address.”

11.  The applicant did not respond to the letter.  She also did not put in any written submission. 

12.  The Judge proceeded to deal with the application on paper.  By a Form CALL-1 dated 31 May 2022, he refused the application.  At [2] to [5], the Judge explained his decision to determine the application on paper as follows:

“2. The applicant stated in Form 86 ‘An oral hearing of this application under O.53, r.3(3) if leave is not granted on the papers.’ Under O.53, r.3(3), the application is an ex parte application for which the court may determine without a hearing unless a hearing is requested in the notice of application. The court therefore treated it as a request for a hearing and a date was fixed for the hearing.

3. However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. Since the applicant had submitted lengthy written submissions, the court sent a letter dated 18 March 2022 to the applicant and invited her to make further submissions in order to dispense with hearing in court. The letter further said that if she takes the view that it is not possible to make written submissions in place of oral hearing, she should so inform the court, stating her reasons why this is the case and if she does not respond to the letter within 7 days, the court will proceed to consider her application on paper. The written decision will be sent to the applicant in due course.

4. The applicant did not respond to the said letter within 7 days.

5. Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to her application. I therefore proceed to consider her application on paper.

13.  At [16] to [23], the Judge gave his reasons for refusing to grant leave to apply for judicial review as follows:

“16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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.’

19. The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The grounds in support of her application do not assist her application.

20. The Court of Appeal in Re Sharma Poonam [2019] HKCA 804 held,

‘16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

There was no application before the Board that she needed time to prepare her appeal. As she said that she answers all the questions put to her by the adjudicator, she cannot say that she was confused at the hearing. Ground (1) fails.’

21. The Board is under no legal obligation to notify her by phone. Ground (2) fails. Grounds (3) and (4) are her personal opinions without any evidence in support. They fail. Ground (5) fails too because there had been screening for the other risks. The applicant relied on the facts in the Director’s First Decision, which were obtained by the immigration officer through the screening. It is simply unnecessary to have another screening process again.

22. 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.

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

14.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The time for the applicant to lodge an appeal expired on 14 June 2022 when the High Court registry re-opened.    

15.  By a summons filed on 22 June 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 21 July 2022[6] refused the application. 

16.  On 12 December 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

17.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

18.  The applicant was late by about one week, which is not a significant delay.  Although the applicant said in her affirmation that she did not receive documents from the court, the court record shows that the Form CALL-1 and the court order were sent to the address provided by her in the Form 86 and supporting affirmation and have not been returned by the Post Office. We do not find the delay to have been satisfactorily explained.

19.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

20.  In her summons, the applicant took issue with the fact that she was not given an oral hearing. We agree that the Judge should not have determined the applicant’s application for leave to apply for judicial review on the papers and not at an oral hearing.

21.  In the first place, under Order 53 rule 3(3) of the Rules of the High Court, a judge “may determine the application for leave without a hearing, unless a hearing is requested in the notice of application”. In the present case, the applicant expressly requested an oral hearing under Order 53 rule 3(3) in the event the court was not minded to grant leave on the papers. The Judge’s discretionary power to determine the application without a hearing therefore has no application.

22.  It would appear from the letter from the Judge’s clerk dated 18 March 2022 (see [10] above) that it was with a view to avoid holding court hearing due to the pandemic that the Judge decided to deal with the applicant’s application on paper. However, in light of the clear wording of Order 53 rule 3(3), it is not open to the Judge to do so.

23.  Further, the reliance on the underlying objectives in Order 1A rule 1(b) and the case management powers under Order 1B of the Rules of the High Court is misplaced. The court’s case management power cannot afford a proper basis for displacing the right to an oral hearing having regard to Order 53 rule 3(3).  We also do not find the reasons in [2] and [5] of the Form CALL-1 capable of supporting the Judge’s decision. Among other things, the Judge was mistaken in stating (at [2]) that the applicant had been given a hearing date.

24.  As to the applicant’s written submission, it cited extensively from decisions on the high standards of fairness and Wednesbury unreasonableness, without indicating in what way are they related to the applicant’s case.  Although it complained that the Board acted in a procedurally unfair way, it did not provide any particulars. The reference to section 37ZT of the Immigration Ordinance, Cap. 115 is irrelevant as the applicant was not late in her appeal to the Board.  

25.  As the applicant has requested to withdraw her judicial review application, it would be futile to extend the time for her to appeal. Accordingly, we dismiss her summons dated 12 December 2022.