RE MANGANAAN SIXTA ZAMUDIO

CAMP 239/2019

[2020] HKCA 412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 239 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 610 OF 2018)

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J U D G M E N T

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

INTRODUCTION

1.  By a decision as set out in Form CALL-1 dated 30 July 2019 (“DHCJ Lam’s Decision”) [2019] HKCFI 1900, Deputy High Court Judge Josiah Lam (“DHCJ Lam”) refused to grant extension of time for the applicant to apply for judicial review.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 29 June 2017 (“the Board’s Decision”) dismissing the applicant’s appeals against the decisions of the Director of Immigration (“the Director”) dated 12 July 2016 (“the Director’s First Decision”) and 24 May 2017 (“the Director’s Second Decision”). 

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”. 

4.  The applicant issued a summons on 6 August 2019 before the Deputy High Court Judge K.W. Lung (“DHCJ Lung”) seeking leave to appeal the DHCJ Lam’s Decision to the Court of Appeal.  On 27 September 2019, DHCJ Lung dismissed her application on the basis that the intended grounds of appeal had no reasonable prospect of success [2019] HKCFI 2335 (“DHCJ Lung’s Leave Decision”).

5.  The applicant now renews the application for leave to appeal DHCJ Lam’s Decision to this Court by way of a summons dated 30 September 2019 (“the Summons”) with a supporting affirmation filed on the same date. 

6.  Pursuant to the directions of the Registrar of Civil Appeal given on 2 October 2019, the applicant lodged her written submissions on 9 October 2019.  Having considered the Summons and the applicant’s written submissions, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court (Cap 4A).  We now hand down our judgment.

BACKGROUND

7.  The applicant is a national of Philippines.  She entered Hong Kong on 10 August 2014 as a foreign domestic helper.  Her employment contract was terminated prematurely but she overstayed and was arrested on 24 August 2015.  She lodged a non-refoulement claim on 25 September 2015.

8.  The details of the applicant’s claim and her personal background were set out in paragraphs 5 - 6 of the Director’s First Decision, and paragraphs 2-3 of the Board’s Decision.

9.  Briefly stated, the applicant claimed that if she were to return to Philippines, she would be harmed to killed by her estranged boyfriend Lemuel Fernandez Ramirez (“Lemuel”).  The applicant and Lemuel became lovers in 2008.  In around 2011, the applicant invited Lemuel to live with her in her newly built house in Philippines.  However, in 2015, while the applicant was in Hong Kong, her father came to her house in Philippine and saw Lemuel inside the house with a woman.  Lemuel admitted that the woman was his girlfriend.  The applicant was also told by her neighbour that Lemuel hosted drinking and sex parties in her house.  She argued with Lemuel over the phone and they ended up with Lemuel threatening to kill her if she returned to Philippines.

THE DIRECTOR’S DECISIONS AND THE BOARD’S DECISION

10.  By the Director’s Decisions, the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]. The Director’s Second Decision assessed the BOR 2 risk[4].

11.  The applicant appealed the Director’s Decisions to the Board.  The Board heard her appeal on 8 May 2017, during which the applicant chose not to answer questions raised by the Board.  The Board found that this was a family dispute with no element of state acquiescence.  The applicant had no restrictions in leaving Philippines and there were no harms or threats of harms inflicted by the government.  Further, the applicant did not suffer any physical or mental pain or suffering.  In any event, internal relocation was available to the applicant (paragraphs 7-18 of the Board’s Decision).  As a result, the Board dismissed her appeal.

DHCJ LAM’S DECISION

12.  On 11 April 2018, the applicant filed her Form 86 for leave to apply for judicial review against the Board’s Decision, which was made well outside the 3-month limit as required under Order 53 rule 4.  The Deputy Judge refused to accept her explanation for the delay and also found that the applicant’s leave application had no merits.  Thus, he refused to grant extension of time to the applicant.  He explained his reasons at [32]-[54] of DHCJ Lam’s Decision:

“Discussion

32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

33. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [7]

Late application for leave for judicial review

34. Order 53 rule 3(1) of the Rules of the High Court reads: –

(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

35. Order 53 rule 4(1) and (2) of the Rules of the High Court read: –

(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

36. It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reason for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[8] If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[9]

37. In the present case, the Board’s decision was issued on 29 June 2017. The Applicant only applied for leave for judicial review nine odd months later on 11 April 2018. Excluding the 3-month grace period for filing, she was late for more than 6 months.

38. The Board's decision was duly sent to the Applicant’s reported address in late June 2017. The Applicant said she had to go to the Post Office to get the document. She could not be specific about the date or even the month when she got the Board's decision. In any event, she said it was still in 2017. The Applicant could read English. She understood the Board had refused her appeal. She waited for a few months to speak to friends and then went to a lawyer. Her lawyer took out the current application on 11 April 2018. The application was more than 6 months late by then.

39. I do not find the Applicant had given any good reason for her delay, which was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. The Applicant's application for leave for judicial review involved no issue of general importance and her argument had no merits at all.

40. The Applicant complained about lack of legal representation.

41. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 12 July 2016.

42. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[10] The Applicant failed to show her case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

43. The Applicant raised her language problem.

44. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[11]

45. In the current application, a lawyer helped the Applicant to prepare Form 86 and the affirmation in English. The Applicant could always enlist help from someone (friends or lawyers) to assist her with interpretation/translation and dealing with English documents at all material times. In any event, the Applicant was assisted by a qualified interpreter when she was before the Adjudicator. The Applicant had much exaggerated her language problem.

46. The Applicant complained she received the appeal bundle only a few days before the Board hearing.

47. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[12] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[13], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

48. The Applicant said the appeal bundle was served on her on or about 1 May 2017. That was 7 days prior to the Board hearing scheduled for 8 May 2017. 1 May and 3 May of 2017 were public holidays; 7 May was a Sunday. Assuming what the Applicant said was true, she got the appeal bundle 7 days prior to the Board hearing. There were only 4 working days in that period.

49. However, the appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

50. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing. In fact, the Applicant chose not to answer the Adjudicator’s questions.[14] She failed to prove there was a forced lack of preparation due to shortage of time.

51. The Applicant said she was confused but she still answered all the questions honestly in the Board hearing. She did not. She chose not to answer the Adjudicator’s questions.

52. There was no evidence the Adjudicator had relied on outdated cases, information not officially recognised or simply hearsay.

53. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

54. The Applicant's application for leave for judicial review is late. She fails to show any good reason to justify the delay. There are no circumstances that oblige the court to consider her late application. I therefore dismiss her application for leave for judicial review.”

EXTENSION OF TIME IN THE COURT BELOW

13.  The applicant first sought leave at the court below.  After considering the applicant’s summons and her supporting affirmation, which only repeated her claim and requested to stay longer in Hong Kong, DHCJ Lung refused to grant leave on the basis that the applicant failed to identify any viable grounds to challenge the DHCJ Lam’s Decision and thus the intended appeal had no reasonable prospect of success.

DISCUSSION

14.  In the Summons, the applicant stated she wanted to challenge the DHCJ Lung’s Decision because he did not state clearly the cause of refusal.  In the supporting affirmation filed on the same date, the applicant claimed that she wanted to challenge the DHCJ Lam’s Decision as she did not receive the decision timely.  In her hand-written written submissions, the applicant repeated that she did not get the DHCJ Lam’s Decision and that she did not have any legal assistance for her applications.

15.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

16.  It is trite that an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  In our view, this application is devoid of merits.

18.  The applicant had failed to identify any errors in DHCJ Lam’s Decision.  She merely repeated her explanation for delay and her lack of legal assistance, which had been dealt with by DHCJ Lam at [38]-[42] of DHCJ Lam’s Decision thoroughly.  This is not a viable ground of appeal.

19.  We are therefore of the view that the intended appeal is devoid of any arguable merits and doomed to fail.  Nor is there any other reason in the interest of justice why the appeal should be heard.  In the premises, this Court would not grant leave to appeal and the Summons is dismissed accordingly.

20.  Given that the application is clearly without any merits, we further make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court that no party may request this determination be reconsidered at an oral hearing inter partes.