RE MONDAL SUMITRA RANI

CAMP 414/2022, [2023] HKCA 1063

On an intended appeal from [2022] HKCFI 1683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 414 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 927 OF 2019)

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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.  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 21 June 2022 ([2022] HKCFI 1683) which dismissed her application for leave to apply for judicial review.

2.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 10 March 2019 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 30 October 2017 which rejected her non-refoulement claim.

3.  The applicant has filed an affirmation to support her application. She has also put in a written submission to support her application.

4.  Under Order 59 rule 14A(1) 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, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.  By a letter received by the court on 17 August 2023, the applicant requested to withdraw her judicial review application. She stated in the letter that she is currently being detained in a correctional institution, and as her problem in her home country was settled she wants to return home as soon as possible. In light of this request of the applicant, this renewed application falls to be dismissed. However, in view of the way in which the Judge disposed of the application for leave to apply for judicial review, we will briefly set out below the procedural background of the case and our observations on an applicant’s right to an oral hearing under Order 53 rule 3(3) of the Rules of the High Court.

6.  The applicant is a national of Bangladesh aged 36. She last entered Hong Kong on 14 June 2014 and was given permission to remain to work as a foreign domestic helper. After her employment was prematurely terminated and her permission to stay expired on 19 August 2014, she did not depart and overstayed. On 6 November 2014 she surrendered to the Immigration Department. She later raised a non-refoulement claim based on fear of being harmed or killed by (i) her husband and his family as they suspected she had an extramarital affair with her friend (“Enamel”); (ii) Enamel’s wife and her family; and (iii) a contract killer called Taj. The details of the applicant’s claim were set out in the decision of the Director at [7]. We will not repeat them.

7.  The Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

8.  The applicant appealed the Director’s decision to the Board. After hearing the appeal on 2 November 2018, the Board dismissed the appeal. The Board considered that, on the evidence, the acts or conduct alluded to by the applicant did not attain the minimum level of severity, or was due to any of the purposes that would bring the acts or conduct within the definition of “torture”, or had involved the state or any public official; and the applicant had not been subjected to physical violence, torture or ill-treatment. The Board also found there was no evidence of a personal and real risk of the applicant being subjected to any risk that falls within any of the applicable grounds. The Board was further of the view that state protection and internal relocation options were reasonably available. The Board concluded that the applicant failed to establish any entitlement to non-refoulement protection.

9.  On 4 April 2019, the applicant filed a Form 86 to apply for leave to judicially review against 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) procedural impropriety: failure to make diligent investigation into the receiving state; failure to conduct sufficient inquiry into the relevant country of origin conditions; failure to give sufficient reasons for BOR3 risk assessment; failure to consider that her case was one of the political cases as many BNP members are imprisoned;

(2) error/misdirection in law: failure to take into account the applicant’s psychological strain and personal threats of being killed.”

10.  The applicant set out the relief sought in her affirmation, which included “an oral hearing of [the] application under Order 53, Rule 3(3) of the Rules of the High Court, Cap 4A if leave is not granted on the papers”. The case was however not listed for hearing. Instead, on 3 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 21 June 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 requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing for her.

3. However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. The court sent a letter dated 3 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.

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 [21], 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 given its reasons in relation to BOR3 risk as set out in paragraph 12 above. The other grounds under 15(1) are bare allegations without any evidence in support. Ground under 15(2) fails because the issue of psychological strain was not brought to the Board’s attention. The Board had already taken into consideration her alleged fear of risk if she were refouled, but rejected her claim. The Board had already given its reasons for its Decision.

20. 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.

21. 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 do so expired on 5 July 2022. By a summons filed on 27 July 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 2 September 2022 ([2022] HKCFI 2440) refused the application.

15.  On 7 October 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.

16.  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.

17.  The applicant was almost three weeks late, which is a significant delay. Although the applicant said in the present summons 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.

18.  As to 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].

19.  The applicant’s written submission 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.

20.  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.

21.  It would appear from the letter from the Judge’s clerk dated 3 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[5].

22.  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). Nor do 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[6].

23.  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 7 October 2022.