LAMA RINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 140/2020

[2021] HKCA 547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 140 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1830 OF 2018)

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J U D G M E N T

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

1.  On 19 September 2019, Deputy High Court Judge K W Lung refused to grant an extension of time for the applicant to seek leave to apply for judicial review and dismissed the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim^[1].

2.  On 23 September 2019, the applicant filed a summons for leave to appeal against the judge’s decision.  The applicant was absent at the hearing of the summons scheduled before the judge on 20 November 2019.  The judge dismissed the application for want of prosecution.

3.  On 3 December 2019, the applicant filed a summons at the court below to set aside the order and to seek extension of time to appeal against the judge’s decision of 19 September 2019.

4.  As court proceedings were generally adjourned since 29 January 2020 for public health reasons, the hearing of the summons scheduled on 31 January 2020 was vacated and re-fixed to 8 April 2020.  It was subsequently further adjourned to 14 July 2020.  The applicant was absent at the hearing before the judge on 14 July 2020.  Her application was dismissed by the judge on 31 July 2020^[2].

5.  The applicant is a national of Nepal.  She is 29 years old.  She arrived in Hong Kong on 27 June 2015 as a visitor and subsequently overstayed.  She was arrested on 20 July 2015.  She raised a non‑refoulement claim on 14 August 2015 on the basis that she would be harmed or killed by people in her village if she is to be returned there as she was accused of witchcraft.  She was convicted of using an identify card relating to another person and breach of conditions of stay for taking up unapproved employment and sentenced to fifteen months’ imprisonment. 

The Director’s decision

6.  By a Notice of Decision dated 20 December 2016, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk^[3], BOR 3 risk^[4], torture risk^[5] and persecution risk^[6]. 

The Board’s decision

7.  The applicant appealed against the Director’s decision to the Board.  She was absent at the hearing scheduled on 6 December 2017.  She attended the rescheduled hearing before the Board on 1 February 2018.  The Board found that she had fabricated her claim because of the significant inconsistencies of her case.  The Board considered that the applicant does not face a real risk of any of the proscribed forms of harm should she return to Nepal and dismissed the appeal on 21 March 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 4 September 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  The application was filed outside the three-month period stipulated under Order 53 rule 4 (1) of the Rules of the High Court (Cap 4A).  She put forward the following grounds for her intended challenge:

(1)  she did not have language assistance and English is not her mother language;

(2)  she was not given any legal assistance in the appeal and leave application;

(3)  the content of the Board’s decision was not translated to her and there should be a certified interpreter to read the decision to her;

(4)  the Director did not explain how he carried out the balancing exercise when considering the Country of Origin Information (“COI”); and

(5)  the content of the hearing bundle was not translated to her.

The judge’s decision

9.  DHCJ K W Lung heard the leave application on 13 March 2019.  The judge rejected the application concerning the Director’s decision as the decision of the Director is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the Board is pursued by a claimant: Re Moshsin Ali [2018] HKCA 549. 

10.  As for the application for leave to seek judicial review against the Board’s decision, the applicant acknowledged before the judge that she had no complaint against the adjudicator, she had had a fair hearing before the Board and her friend had explained the Board’s decision to her.  The judge considered all of the applicant’s grounds are irrelevant to the finding of facts by the Board and are inconsistent with her oral submissions at the hearing.  He concluded that the applicant failed to show she has a reasonable prospect of success in her proposed judicial review.  Therefore, the judge refused to grant an extension of time for the applicant to seek leave to apply for judicial review and dismissed the leave application on 19 September 2019.

Analysis and disposition

11.  The applicant filed the present summons for leave to appeal to the Court of Appeal on 21 August 2020.

12.  As the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 2 December 2020 to lodge her written submissions within the prescribed time, she is deemed to be relying only on the representations made in her summons and affirmation filed in support of the present application.

13.  As it has been held by the Court of Final Appeal that an applicant does not need leave to appeal to the Court of Appeal in respect of a refusal of extension of time to bring an application for leave to seek judicial review (H v Director of Immigration [2020] HKCFA 22), this summons shall be treated as an application for an extension of time to appeal against the judge’s decision dated 19 September 2019. 

14.  In considering whether to extend time for appealing against a decision refusing 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.

15.  Having regard to the matters mentioned above, in particular the fact that the applicant had taken timely action in filing a summons for leave to appeal against the judge’s decision on 23 September 2019, the delay in bringing the appeal against the 19 September 2019 decision is excusable.  

16.  The court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[7].

17.  In assessing the merit of the intended appeal, the court 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.

18.  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 scrutinizing 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.

Grounds of Appeal

19.  The applicant’s grounds of appeal stated in her supporting affirmation may be summarized as follows:

(1)  the judge erred in his judgment by not taking all relevant circumstances into account;

(2)  the judge attacked the applicant for not providing any proposed ground for her appeal.  The applicant was not made aware that it was required as she was seeking an extension of time so she only explained why extension of time should be granted.  Besides, the decisions were not translated to her so she does not understand the content so as to find out the errors;

(3) the judge ignored all of the applicant’s proposed orders and her explanation for the delay.

20.  The applicant failed to show that she has a reasonable prospect of success in her intended appeal.  The Board found that she had fabricated her claim and rejected her appeal.  In both the leave application at the court below and the present application, the applicant has not provided any reasonably arguable ground or evidence to refute the finding of the Board.  Even though the judge had accepted the applicant’s explanation for the delay in lodging the application for leave to bring judicial review, the judge was well justified in dismissing the leave application. 

21.  For all the above reasons, we refuse to grant extension of time to appeal against the judge’s decision of 19 September 2019 and dismiss the summons filed on 21 August 2020.

[1] [2019] HKCFI 2212

[2] [2020] HKCFI 1772

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] Re Gurung Min Bahadur [2018] HKCA 226 §10