RE MARY MANIANTHARA PAUL

CAMP 269/2021

[2022] HKCA 192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 269 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1806 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 9 July 2020[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 20 August 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 8 September 2017 rejecting the applicant’s non-refoulement claim.

2.  On 13 July 2021, the Judge refused to extend the time for the applicant to appeal against his decision of 9 July 2020.[2]

Background

3.  The applicant is an Indian national. She was previously employed in Hong Kong as a domestic helper until she was terminated on 6 March 2009, and departed Hong Kong on 22 March 2009. She last arrived in Hong Kong again on 21 June 2009 and was permitted to remain as a visitor until 5 July 2009, but this time she did not depart and thus overstayed. She surrendered herself to the Immigration Department on 2 July 2014, and lodged a non-refoulement claim on 24 July 2014.

4.  The applicant’s claim was based on the fear that, if she returned to India, she would be harmed or even killed by her ex-boyfriend. She claimed that her ex-boyfriend was a gangster and that when she wanted to break up with him in 2008 he threatened by phone to kill her. When she returned to India in March 2009 he actually assaulted her and threatened to kill her. The detailed factual background is set out at paragraph 12 of the Board’s decision.

5.  By notice of decision dated 8 September 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her. The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 16 July 2018, during which the applicant gave oral testimony and answered questions from the Board with the assistance of a Hindi language interpreter. The Board did not accept most of her claims, due to her oral evidence at the Board hearing differing considerably from the information in her non-refoulement claim form. The Board noted that it had put those inconsistencies to the applicant at the hearing, but she did not respond or was unable to give any satisfactory explanation. At the end the Board accepted that the applicant knew a man with the name of the ex-boyfriend, but did not accept that they were in romantic relationship or that the applicant attempted to end it after learning of the problems with his character. The Board did not accept that the applicant had been harmed or threatened with harm by that person or indeed anyone else at any time in India.

7.  Thus the Board found that there was no real risk of harm in the event of refoulement, and dismissed the applicant’s appeal on 20 August 2018 in relation to all applicable grounds.

The Judge’s decisions in the court below

8.  On 3 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her supporting affirmation, she stated that in her country her life was still threatened by her enemy who made much trouble to her mother. She also stated that she was unable to submit her supporting documents during her interview and needed time to obtain all her documents because floods in her state had destroyed all her property.

9.  Following a hearing on 6 December 2019 attended by the applicant, on 9 July 2020 the Judge refused to grant leave to apply for judicial review. The reasons were set out at [14] – [18] of the Form CALL-1 as follows:

“ 14. The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and she could read the Board’s Decision herself.

15. I put the Board’s findings to her and asked her if she had any comments on them. She said that she had no comments.

16. 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.’

17. The reasons set out in her affirmation do not assist her application. She had had her chance of presenting her case before the immigration officer and the Board. This Court would not make further investigation into the facts of her case. It is difficult to imagine what documents would alter the Board’s Decision.

18. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

10.  On 24 July 2020, the applicant took out a summons to seek an extension of time to appeal against the Judge’s decision. In her supporting affidavit, the applicant explained that she was unable to submit any supporting documents during her screening interview and that she still had trouble from her boyfriend in her country.

11.  The Judge determined the application on paper without an oral hearing. In his decision dated 13 July 2021, the Judge stated that as the applicant had not shown any reasonable prospect of success in the intended appeal, the summons was dismissed.

The renewed application before this Court

12.  On 22 July 2021, the applicant took out a summons seeking an extension of time from this Court to appeal against the decision of the Judge refusing to grant leave for judicial review. In the summons, she stated that she was unable to submit the proper documents to the court, that she still has a problem in her country, and that she would try her best to obtain the supporting documents before the oral hearing, though there would be difficulty in doing so due to the increase in COVID-19 infections in India.

13.  On 22 July 2021, the Registrar of Civil Appeals directed that the applicant shall lodge written submissions in support of her summons by 5 August 2021, failing which the matter will be referred to the Court of Appeal for determination based on the available documents and materials.

14.  The applicant has to date failed to lodge any submissions as directed. We consider it appropriate for this application to be determined on paper without a hearing, based on the available documents and materials.

Discussion

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

16.  The applicant’s application to the Judge for extension of time to appeal was late by only 1 day. As the delay was very short and the applicant was not legally represented, we have proceeded to decide the present application on the basis of the merits of the intended appeal.

17.  In assessing the merits, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge below in light of the grounds advanced by the applicant. If no viable ground is put forward for reversing 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 the appeal were a fresh application for judicial review.

18.  In the present case, the Board rejected the applicant’s non-refoulement claim due to its adverse finding on the applicant’s credibility. As stated above, the Board disbelieved the applicant and found that there was no real risk of harm in the event of refoulement. Such findings are within the province of the Board. The applicant has failed to advance any public law grounds that can impugn the Board’s decision.

19.  Likewise the applicant has failed to advance any intended grounds of appeal that can impugn the Judge’s decision. Although she has repeatedly referred to her wish to adduce supporting documents, she has not even identified the nature of these documents or explained why they were not available at the screening interview or at the hearing before the Board.

20.  Having considered the materials before us, we are of the view that there is no reasonably arguable ground for judicial review and the Judge was quite right to refuse leave.

21.  For these reasons, there is no prospect of success in the intended appeal. The summons dated 22 July 2021 for extension of time to appeal is accordingly dismissed.