RE MANJIT KAUR

CAMP 172/2023, [2024] HKCA 343

On Appeal From [2023] HKCFI 233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 172 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 511 OF 2022)

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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):

1.  On 28 April 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 26 April 2023 ([2023] HKCFI 1095)  (“the EOT Decision”)  refusing to grant her an extension of time to appeal against an earlier order of the Judge dated 2 February 2023 ([2023] HKCFI 233)  (“the Leave Decision”)  refusing leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 12 May 2022, dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 26 January 2022 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of India.  She came to Hong Kong to work as a foreign domestic helper in March 2016.  Her employment was prematurely terminated on 15 May 2016.  She was granted extension of stay as a visitor until 28 June 2018 to prosecute her claim for non-payment of wages.  She overstayed and surrendered to the Immigration Department on 12 July 2018.  On 29 November 2021, she raised her non-refoulement claim on the basis that, if refouled, she would be harmed or killed (a)  by a creditor by the name of Moti Singh (“Moti”)  for being unable to repay her loan; (b)  by her eldest son and her mother-in-law for the borrowing, which they alleged had led indirectly to her husband’s death; and (c)  by her second son for her having a relationship with her boyfriend Soni who is married to another.  Details of the applicant’s claim have been summarised by the Judge at [4] - [9] of the Leave Decision.

5.  By a Notice of Decision dated 26 January 2022 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds including risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 12 May 2022, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [10] - [16] of the Leave Decision. In essence, the Board disbelieved the applicant and found her evidence conflicting.  The Board considered that material aspects of her case had been incredible and unreliable, in particular, in relation to the borrowing of the loan, her husband’s death and her allegations of threats from her immediate family members.  In any event, the Board found that her feared risks were unlikely to materialise and that internal relocation would be available. Accordingly, the applicant failed to prove her case on all applicable grounds and the Board dismissed her appeal and reaffirmed the Director’s Decision.

7.  On 21 June 2022, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  No ground of review was given in the Form 86.  In her supporting affirmation, she advanced the following four grounds of review as summarised by the Judge at [18] of the Leave Decision:

“18. The Applicant advanced the following four grounds of application:

(1)  the Director’s and the Board’s decisions are unfair and unreasonable;

(2)  the Director failed to give proper weight to the presence of state acquiescence;

(3)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case; and

(4)  the Director’s attitude was unfair.”

8.  On 10 January 2023, the applicant attended an oral hearing in person before the Judge.  An Urdu interpreter was present to provide language assistance.

THE JUDGE’S DECISION

9.  On 2 February 2023, the Judge refused to grant the applicant leave to apply for judicial review. His reasons were stated at [18] - [31] of the Leave Decision.  As the Director’s Decision had been superseded by the Board’s Decision, the Judge considered her allegations against the Director to be against the Board’s Decision as well.  In essence, the Judge found that there was no substance regarding her complaint on the lack of time as she had ample time to prepare her case before the Board and the Director.  The Board had also considered the issue of state acquiescence and the applicant’s complaint lacked substance.  The Board had thoroughly considered her evidence and the finding of fact and weight of the evidence were matters that were solely within the Board’s province.  The Judge found no error of law or procedural unfairness or Wednesbury unreasonableness in the Board’s Decision.  Accordingly, her intended judicial review had no chance of success and the Judge refused her application for leave to apply for judicial review.

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 30 March 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was 1.5 months late with her intended appeal.

12.  On 26 April 2023, the Judge refused the applicant’s application.  The Judge found that applicant failed to provide a good or valid reason for her delay.  The applicant also failed to put forward any ground of appeal.  There was no prospect of success in her intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation taken out on 28 April 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In her summons, she failed to give any reason justifying her delay or any intended ground of appeal.  In her supporting affirmation, she claimed that she was unrepresented and did not have access to any legal advice.  She further claimed that she had a good ground of appeal but failed to specify what the said ground was.

14.  Pursuant to the directions of the Registrar of Civil Appeals dated 28 April 2028, the applicant lodged her written submissions on 11 May 2023.  In those submissions, she cited various case authorities and legal principles on the high standard of fairness, Wednesbury unreasonableness and section 37ZT of the Immigration Ordinance (Cap 115)  without specifying how those provisions were relevant to her case.

DISCUSSION

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  In our view, a delay of 1.5 months is substantial and the applicant fails to give any reason, let alone good reason for her delay.

21.  There is also no substance in the applicant’s complaint as to the lack of legal representation. There is plainly no legal basis for any contention that she was or is entitled to legal representation at all stages of the proceedings.  See: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; and Re Lopchan Subash[2018] HKCA 37.

22.  In any event, her intended appeal is devoid of merit.  The applicant’s complaints against the Board’s Decision are general allegations without particulars.  More importantly, the applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.  We see no basis to interfere with the Leave Decision.

23.  There is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

24.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 28 April 2023 is dismissed.