RE RAI RANJANA

CAMP 60/2022

[2023] HKCA 128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 785 OF 2018)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  On 28 September 2020, DHCJ C P Pang (“Judge Pang”) refused to grant an extension of time to the applicant for application for leave to apply for judicial review concerning her non-refoulement claim (“the JR Decision”) and dismissed the leave application. Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 3 February 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ Suffiad (“Judge Suffiad”) on 5 November 2021.

3.  On 17 February 2022, the applicant filed a summons in CAMP 60/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the decision of Judge Suffiad of 5 November 2021.  It is appropriate to treat the application as a renewed application for extension of time to appeal against the JR Decision, see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 17 February 2022, the applicant should have lodged her written submissions with the court on or before 3 March 2022 but she failed to do so.  As further directed by the Registrar, in case the applicant failed to lodge her written submissions before the deadline, she will be deemed to have abandoned her right to rely on written submissions and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is a national of Nepal.  She came to Hong Kong as a foreign domestic helper in 1997.  She was last permitted to remain as a visitor in Hong Kong until 12 July 2004 after her contract had been prematurely terminated.  She overstayed and was arrested by the police on 20 December 2009.  On 24 December 2009, she lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment alleging that if refouled, she would be in danger because the Maoists would kill her as she refused to join their political group.  Her torture claim was rejected by the Director of Immigration (“the Director”) on 3 September 2013 under Part VIIC of the Immigration Ordinance (Cap 115).  She did not lodge any appeal against that Director’s decision on her torture claim.

7.  A Notice to Persons Making a Non-refoulement Claim was served on her on 2 February 2016 in which she was informed that the Director’s previous decision regarding her torture claim filed in 2013 would not be reviewed under the Unified Screening Mechanism.  The applicant’s non-refoulement claim was therefore assessed on all applicable grounds other than risk of torture.  The factual background of this case was succinctly summarised by the Judge at [2] – [5] of the JR Decision ([2020] HKCFI 2386).

8.  By a Notice of Decision dated 5 May 2016 and a Notice of Further Decision dated 25 April 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2] and the persecution risk[3]. 

9.  The applicant appealed the Director’s decisions dated 5 May 2016 and 25 April 2017 to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 27 September 2017.  By its decision dated 15 December 2017, the Board dismissed the appeal.  For the reasons set out at [57] to [73], the Board rejected the applicant’s case.  The applicant gave no cogent reasons why the Maoists would only pick her but not her elder brothers to join their group in the party recruitment exercise in 1994 and she admitted that she had nothing particular of interest to them and had no special skills.  She was not assaulted or injured when she was approached by the Maoists but only received verbal threats.  Further, it was not believed that the Maoists would still be interested in her after more than 19 years.  Relevant country of origin information (“COI”) suggests there is reasonable state protection [81] – [85] and internal relocation is a viable option [86] – [89].  For the aforesaid reasons, her non-refoulement claim was rejected on all relevant applicable grounds under the USM.

Application for leave to start judicial review

10.  On 4 May 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and Board’s decisions.  Pursuant to Order 53, rule 4(1) of the Rules of the High Court (Cap.4A), an application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when the grounds for application first arose.  By the time she filed the Form 86, she was out of time for about 1.5 months.

11.  In her supporting affirmation, she did not provide any ground for relief save for saying that the Director’s and the Board’s decisions were not correct as they have failed to consider the real situation in Nepal.

The JR Decision

12.  The applicant did not request an oral hearing and Judge Pang disposed of the application on paper.  After due consideration of the Board’s decision, Judge Pang refused to grant an extension of time for the application for leave to apply for judicial review and dismissed the leave application for reasons set out in [17] - [32] of the JR Decision:

“Discussion

17.  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.  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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

18.  Though she applied for judicial review against the decisions of the Director as well as that of the Board, the Director’s decisions are superseded by the Board’s decision and hence not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, the Court will only focus on the latter’s decision.

Late application

19.  The application for judicial review was made out of time, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review 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.

20.  As the application for leave was made out of time, the Court will apply the principles set out in AW v Director of Immigration [2016] 2 HKC 393.  In considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration.

21.  The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.  Briefly, the following are principles relevant to the present case: (a) an application made outside the three-month period will entail undue delay; (b) as such, an extension of time is required, and to justify an extension of time, the applicant must show good reason for extending the period; among the various factors likely to be significant are the merits of the substantive application; (c) indeed, even if there exists good reason for undue delay, the grant of leave to commence judicial review will also depend on the arguability test (among other factors); the arguability test requires the applicant to demonstrate to the court that his case is one that enjoys realistic prospects of success: Re Mohamed Cassim Jawfar CAMP 16/2020, [2020] HKCA 633 para 15.

22.  Even allowing her 3 months’ time, the applicant was late in this application for about 1.5 months.  The delay was not a short one and there was no explanation offered for the delay.  In such circumstances, there is no basis for me to accept that there was any reasonable excuse for the delay.

23.  The court also examines if she has merit in the intended application.

24.  Far from a case with realistic prospect of success, I am of the view that the intended application of the applicant has no prospect of success at all.

25.  The complaint raised by the applicant is a general and vague assertion, without any specifics or particulars as to how the Director or the Board were unfair or unreasonable in the public law sense.  Nevertheless, the court is under a duty to consider the application with rigorous examination and anxious scrutiny.

26.  In the present case, the Board appears to have accepted the primary facts alleged by the applicant.  It was a finding most favourable to the applicant.  It however disagreed with the applicant on the assessment of risk flowing from such events.  It rejected the applicant’s appeal/ petition on the grounds including that the applicant should not be affected by the incidents she alleged which, even if existed, took place between 1994-1997.  The Board was also satisfied that state protection would be available for the applicant and that internal relocation would be viable.  The Board found that her fear of harm or ill treatment is not substantiated.

27.  As explained above, assessment of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

28.  The alleged incidents happened more than 20 years ago.  When it has been established that state protection is available and that it is not unreasonable for the applicant to relocate to another part of her home country, there will be no justification for affording her non-refoulement protection in Hong Kong: TK v Jenkins [2013] 1 HKC 526.

29.  There is no merit in the bare allegation that “They have failed to consider the ground realities in Nepal”. The Director and the Board did consider the COI carefully and gave proper weight to it in evaluating the situation in Nepal.

30.  In my view, the applicant’s conduct in Hong Kong by her delay in lodging the claim for protection could damage her credibility and was inconsistent with someone in genuine fear for her life and safety.

31.  Even on the applicant’s own case, the decisions of the Director and the Board cannot be faulted.

32.  The records show that the applicant has had ample opportunities to present her case to the Director and the Board in different stages spanning through years.  I do not see any valid basis for questioning the fairness of the proceedings and the proper basis of the decisions.  Having reviewed under rigorous examination and anxious scrutiny, I cannot not find any valid ground to intervene with the Director’s and the Board’s decisions.  The applicant’s application is entirely devoid of merits.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 3 February 2021 for an extension of time to appeal.  That was dismissed by Judge Suffiad on 5 November 2021.  Hence, the Summons to this court. 

Discussion

14.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

15.  As for (1), the applicant was late by more than 3.5 months between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was substantial.   

16.  As for (2), the reasons for the delay, the applicant explained in her supporting affirmation that she did not receive the JR Decision.  The court file shows that the JR Decision was sent on the same day it was handed down to the last reported address of the applicant and it was not returned through undelivered post.  However, it was noted that she provided a different address in her summons dated 3 February 2021.  As Judge Suffiad rightly pointed out, the applicant should inform the court of her new address or shoulder the consequence of failing to do so.

17.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision.  Upon Judge Suffiad’s review of the Board’s decision, he did not find the Board had erred in any respect. 

18.  In the affirmation in support of the summons filed in this court, the applicant complained that there were lack of legal and language assistance and therefore she could not understand the judgments of the court and was unable to prepare proper grounds for her intended appeal. 

19.  We do not find any merit in the challenge based on lack of legal and language assistance.

20.  As a matter of law, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribes that the non-refoulement claimant has an absolute right to free legal representation at all stages of the proceedings, see: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15.

21.  As for the complaint based on language, it is noted that all the documents provided by the applicant in relation to the judicial review application and this appeal were written in English, indicating either that the applicant is familiar with the English language or that she has access to such language assistance as needed.

22.  We are satisfied that Judge Pang had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

23.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 17 February 2022.