RE RAI KALPANA

CAMP 254/2022

[2023] HKCA 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 254 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 81 OF 2021)

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J U D G M E N T

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

1.  On 15 July 2022, the applicant issued the summons in these proceedings (“15 July 2022 Summons”) to make a renewed application for extension of time to appeal against the decision of Deputy High Court Judge Patrick Li (“the Judge”) dated 23 February 2022 ([2022] HKCFI 526)[1] refusing her application for leave to apply for judicial review.

2.  On 26 September 2022, the Court received a letter dated 17 September 2022 (“17 September 2022 Letter”) said to be from Rai Kalpana with the same RBCL number as the applicant, which read as follows[2]:

“	Rai Kalpana
	xxxxx-2020
	17 Sep 2022
To, the high court
Respected sir/madam,
With all due respect I would like to inform you that my name is ‘Rai Kalpana’ and my RBCL no, xxxxx-2020. I forget my ‘Judicial Review’ no cause being outside here really hard to remember anything actually my parpose of being here I want to ‘withdraw’ my ‘judicial review’ cause I already applied to go back to my country I already setteled my problem with my enemy and they will not harm me if I go back to my country. So, if I go back to my country there is no any danger for my life.
So therefore first beg your pardon and humbly requesting you kindly ‘withdraw’ my judicial review that I can quickly go back to my country. Please help me ‘withdraw’ as soon as possible I really will be very grateful to you thanking you.
	Yours sincerely
	Rai Kalpana
	RBCL No. xxxxx-2020”

3.  Chu VP treated the request in the letter as a request to withdraw the 15 July 2022 Summons, and by an order made on 5 October 2022 dismissed the summons. The applicant was informed of the order by the court’s letter dated 7 October 2022 enclosing the sealed order.

4.  On 29 November 2022, the applicant filed a summons, which states as follows:

“The Applicant is requesting for Seeking relief against the unless Court Order by withdrawing her Summons application for leave to apply for make an appeal out of time;

The Applicant never wrote any letter to High Court for withdrawing her application; and

This is the second time the Applicant’s application was dismissed by way of letter, which the applicant completely unaware of.”

5.  In the affirmation filed together with the summons, the applicant further stated that:

“And this time after getting the dismissed order I went back to the court again to search the court file but there were no letter was found in the court file. I have no idea how the court dismissed my case without the proper letter of withdrawing the application. Please consider my case not to be dismissed and grant leave to re-open my leave application for Judicial Review or court of appeal.”

6.  The reference to “seeking relief against the unless Court Order” is clearly inappropriate as no unless order has been made in this case. The applicant’s summons was dismissed as a result of the request to withdraw it made in the 17 September 2022 Letter. Having regard to what was stated in the summons dated 29 November 2022 and the supporting affirmation, we will treat the summons as an application to set aside the order dismissing the 15 July 2022 Summons.

7.  The applicant stated in her supporting affirmation that when she searched the court file, she could not see the 17 September 2022 Letter. This is because, in accordance with court practice, the Letter is placed in a correspondence file, which is kept separate from the court file and not available to be searched and read. Had the applicant written to the court to request a copy of the letter instead of doing a search of the court file, she would have been able to see the 17 September 2022 Letter. In any event, we have set out the content of the letter at [2] above.

8.  As to the applicant’s assertion that she did not write to the court to withdraw her application and she was not aware of the 17 September 2022 Letter, we are not without reservations. It is difficult to comprehend why someone would write to the court without the applicant’s authority, and how that someone would know she had a pending court application and also have her RBCL number. That said, we note that the 17 September 2022 Letter does not contain a signature. In light of this and the fact that it is inappropriate to resolve disputed fact on affidavit, we will give the applicant the benefit of the doubt. We set aside the order dated 5 October 2022 and proceed to consider the renewed application for leave to appeal out of time.

9.  The applicant has filed an affirmation in support of the renewed application. Pursuant to the directions given by the Registrar of Civil Appeals, she had also on 28 July 2022 lodged a written submission.

10.  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 and the applicant’s written submission, we are of the view that it is appropriate to determine the renewed application on paper without a hearing.

11.  The applicant is a national of India aged 36. She first came to Hong Kong in December 2011 and was given permission to remain to work as a domestic helper. Her employment visa was extended several times as she changed employers in 2013, 2015 and 2018. It was later found out that she did not in fact work for any of the employers and she was arrested for entering into fraudulent employment contracts. On 25 April 2020, she was convicted and sentenced to four months’ imprisonment. In May 2020, she raised a non-refoulement claim based on fear of being harmed or killed by her creditor, Ronita, due to her failure to repay her debt. The details of the applicant’s claim were set out in the decision of the Director. We will not repeat them.

12.  By a decision dated 22 September 2020, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[3], BOR 3 risk[4], persecution risk[5] and BOR 2 risk[6] grounds.

13.  The applicant appealed to the Torture Claims Appeal Board (“the Board”). The Board heard the appeal at an oral hearing held on 14 December 2020, during which the applicant gave evidence and answered questions from the Board. By its decision dated 14 January 2021, the Board dismissed the appeal. In gist, the Board found the applicant’s evidence lacking in details and her case inherently implausible. The Board held that the applicant’s case was not credible and that she had fabricated the factual basis of her claim. The Board also considered that the alleged assault by Ronita did not fall within the meaning of torture and there was no real or substantial risk of the applicant being subject to ill-treatment, persecution or arbitrary deprivation of life. The Board concluded that the applicant failed to establish her entitlement to non-refoulement protection under any of the applicable grounds.

14.  On 25 January 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. The applicant had not put forward any specific grounds for seeking relief. She only stated that she disagreed with the decision and that her life was in danger in India.

15.  The Judge listed the application for a hearing on 3 January 2-22. The applicant did not attend the hearing. The Judge proceeded to consider the application on the papers. By a Form CALL-1 dated 23 February 2022, the Judge refused to give leave to apply for judicial review and gave his reasons at [19] to [21] as follows:

“19. 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. In general, this court would not interfere.

20. The applicant had not made specific complaint against the decision of the TCAB. The circumstances of borrowing the 6 million Indian Rupees was unconvincing. Despite the loan was raised in 2010 and that she had only repaid 500,000 Rupees so far, Ronita only took action in 2018 to ask for repayment. Besides, her family was never harassed. I agree with the adjudicator that the factual bases of her claim is not credible.

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

16.  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 14-day period for the applicant to appeal the Judge’s decision was due to end on 9 March 2022. However, as a result of the public health situation due to Covid-19, the court registries were closed from 7 March to 11 April 2022. Consequently, the last date for the applicant to file her appeal fell on 12 April 2022[7].

17.  By a summons filed on 28 April 2022, the applicant applied for an extension of time to appeal the Judge’s decision. Deputy High Court Judge To dealt with the application on paper, and by his decision dated 12 July 2022 dismissed the application.[8]

18.  On 15 July 2022, the applicant filed a summons which in substance is a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review (see [1] above).

19.  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.

20.  The applicant was more than two weeks late, which is not an insignificant delay. The applicant stated in her affirmation that the Form CALL-1 and court order were lost in the mail, and she only learnt of the Judge’s decision after carrying out a search of the court file. Deputy High Court Judge To found (at [4] to [6] of his decision) that this is because the applicant had moved but she failed to inform the Court or the Immigration Department of her new address. We agree with the Deputy Judge that the applicant was under a duty to update the Court of her new address, and she has failed to discharge the duty. We do not consider the applicant has satisfactorily explained her delay. She has to demonstrate that her intended appal has a real prospect of success before the Court would consider giving leave to appeal.

21.  As to the merits of the applicant’s 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].

22.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

23.  The applicant did not provide any ground in support of her intended appeal in either the 15 July 2022 Summons or the supporting affirmation.

24.  The written submission quoted extensively from judgments on the high standard of fairness and Wednesbury unreasonableness. It raised two grounds of argument. Under the 1^st Ground, it is said that (1) the decision has the effect of finally disposing of the applicant’s claim, making her liable to be removed, and thus the high standard of fairness should apply; and (2) the Board erred in approaching the matter by trying to see whether it could find fault with the Director’s decision, and had failed to consider the country conditions of the applicant’s country of origin. Under the 2^nd Ground, it is said that under common law, minimum standards of procedural fairness are required.

25.  For the reasons set out below, we are of the view what was put forward in the written submission do not amount to viable grounds of appeal:

(1)  The applicant has not indicated how the legal propositions quoted in the written submission relate to his case.

(2)  There is no basis for the assertion that the Board’s approached the appeal by trying to see whether the Director’s decision could be faulted. It is evident from the Board’s decision that it had conducted a rehearing by considering and assessing afresh the applicant’s case, her evidence and credibility.

(3)  Given that the Board rejected the applicant’s evidence and factual assertions, there is no evidential and factual basis to support her claim. This being the case, the Board did not have to consider the country-of-origin information.

(4)  We have separately considered the Board’s decision. Like the Judge, we do not discern any error of law, irrationality or procedural irregularity or unfairness.

26.  We agree with the Judge that the intended appeal against the Judge’s decision had no merits and that leave to apply for judicial review should be refused.

27.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success. This being the case, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 15 July 2022.

28.  In conclusion, we make the following orders:

(1)  The order dated 5 October 2022 is set aside.

(2)  The summons filed on 15 July 2022 is dismissed.